Interlocutory appeal from the Circuit Court of Lake county;
the Hon. RALPH J. DADY, Judge, presiding. Judgment reversed.
Opinion filed May 24, 1951. Rehearing denied July 17, 1951.
Released for publication July 17, 1951.
MR. JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 17, 1951
Defendant, Edward E. Kleinschmidt, is prosecuting this interlocutory appeal from a temporary injunction issued by the circuit court of Lake county, in a divorce proceeding, enjoining defendant from litigating a divorce action previously instituted by him in the State of Florida against the plaintiff, Marie J. Kleinschmidt.
The primary issue presented in this cause is the propriety of the issuance of the temporary injunction by the circuit court under the facts and circumstances presented by the record.
From the record it appears that plaintiff, Marie Kleinschmidt, and defendant, Edward Kleinschmidt, were married at Highland Park, Illinois on September 25, 1937, at which time plaintiff was 26 years of age and defendant was 61. On July 19, 1939, defendant, Edward Kleinschmidt, filed suit for divorce against plaintiff in Lake county, in which proceeding plaintiff filed an answer and cross-complaint. In connection with the settlement and dismissal of that action, the parties entered an agreement whereby plaintiff waived her dower rights in return for numerous grants, including 500 shares of American Telephone & Telegraph stock, a contract that the defendant would "buy or build a suitable residence in such community as the parties may hereafter agree upon to be used as a home for them," which property was to be held in joint tenancy, and defendant's commitment to assign plaintiff a half interest in any and all inventions which defendant may make after December 1, 1939.
Pursuant to the agreement, a home was built in Florida, which contained the property and personal effect of both parties, who resided there continuously from 1941 to 1944, and again in 1949. Plaintiff contends that the 1949 stay was merely an extended vacation, whereas defendant insists that the parties lived there from early 1949 until shortly before he instituted divorce proceedings on November 19, 1949, and that plaintiff left the state to avoid service, but he continued to reside there until May 26, 1950, when plaintiff filed suit in Illinois.
In defendant's divorce action in Florida, in which he is the plaintiff, it is alleged that both parties were residents of Miami Beach, Dade county, Florida. In addition to the prayer for divorce, supported by appropriate allegations, defendant (plaintiff therein) sought an injunction, enjoining Marie Kleinschmidt from molesting him or interfering with his work, and a determination of which inventions should be assigned to her under the 1939 agreement, as well as an order requiring her to deliver up his signed copy of that agreement, which she allegedly removed.
The Florida court overruled Marie Kleinschmidt's motion to quash service and ruled that her appearance and participation constituted a general appearance. A certified copy of this order appears in the record. Some six months after the Florida proceedings were instituted by Edward Kleinschmidt, Marie Kleinschmidt filed the complaint herein on May 26, 1950, alleging that the parties were residents of Illinois. The complaint refers to the earlier divorce proceedings in 1939 and the agreement, which plaintiff alleges defendant failed to perform in various particulars, and further alleges that Edward Kleinschmidt has no grounds for divorce, but, on the contrary, has been guilty of various alleged acts of cruelty toward her. Plaintiff made as parties defendant, Kleinschmidt Laboratories, Inc., Continental Illinois National Bank & Trust Co., American Telephone & Telegraph Co., Thomson & McKinnon, all of which are alleged to have in their possession money or property belonging to the plaintiff.
The ensuing sequence of pleadings and orders followed. On May 31, 1950, the Illinois court, on the application of plaintiff, entered an order restraining the several defendants, other than Edward Kleinschmidt, from transferring any assets belonging to him until further order of the court. On July 3, 1950, Edward Kleinschmidt filed his appearance and motion to dismiss on the ground that there was a prior action pending between the parties in Florida, in which plaintiff herein had entered a general appearance. This motion was denied on July 11, 1950, and the court ordered defendant to answer by August 21, 1950. On August 4, 1950, plaintiff filed a petition for a temporary injunction restraining Edward Kleinschmidt from further prosecuting his Florida action, and for attorney fees. On August 21, 1950, defendant, Edward Kleinschmidt, filed a motion to strike the complaint on the ground that it was insufficient in law, and on September 1, 1950, plaintiff obtained leave to file an amendment to the complaint instanter, which the court ordered defendant to answer within 5 days.
In this amendment plaintiff alleged that defendant was unable to obtain a divorce under Illinois law, that plaintiff believes that the courts of Florida grant divorces regardless of merit, and that if defendant is allowed to proceed in Florida it will be in the evasion of the Illinois laws, and will cause plaintiff great hardship, hence, an injunction should be issued without bond, restraining defendant from proceeding with the Florida action until further order of the court.
On September 5, 1950, while defendant's motion to strike was still pending, and before the expiration of the 5 days which the court had allowed defendant to answer the amendment, the court heard plaintiff's application for a temporary injunction restraining defendant from prosecuting the Florida action. At this hearing defendant's counsel objected to the injunction on the grounds that the complaint did not state a cause of action, since the allegations of cruelty were insufficient; that there was no allegation that defendant's residence in Florida was fraudulent; that the Florida court has jurisdiction of defendant's action, in which plaintiff has appeared generally; and that there are no allegations of inconvenience or hardship to plaintiff. Moreover, defendant's counsel called the attention of the court to the fact that the time for defendant to answer had not yet expired, and that his motion to strike was still pending. In support of defendant's denial that the parties resided in Illinois, counsel asked leave to call plaintiff under sec. 60 of the Civil Practice Act as an adverse witness; offered to present a certified copy of plaintiff's voters registration in Florida; and also argued that in the contract, which plaintiff made a part of the complaint, it was agreed that the sum of $25,000 be spent in 1939 to buy or build a suitable residence as a home for the parties in Florida.
The circuit court stated that it was obliged to assume as true the allegation of Illinois residency in plaintiff's complaint, for the purposes of the application for the injunction, and could hear no evidence on that issue until an answer was filed. The court, however, gave defendant until the following morning to answer, notwithstanding the fact that defendant's motion to strike was pending.
On the following morning, September 6, 1950, defendant advised the court that on the previous afternoon the circuit court of Dade county, Florida, entered a temporary injunction, restraining plaintiff herein from prosecuting this suit until further order of the Florida court. Without further consideration of the answer, which defendant had prepared in compliance with the order entered the preceding day, and without hearing any evidence on the issue of the residency of the parties, the circuit court issued the injunction enjoining defendant from proceeding with his action in Florida, from which order defendant excepted, and prosecuted this appeal.
Defendant did proceed, however, that same day, to file the verified answer to the amendment, in which he reserved all of the benefits of his motion to strike the complaint, but denied all the allegations of the amendment, and alleged that plaintiff and defendant resided in Florida from 1941 to 1949; that about the time defendant filed his divorce action against plaintiff she fled the state to avoid service of process, and filed a motion to quash, which the Florida court ruled constituted a general appearance; that since 1941 defendant has not been a resident of Illinois; that the Florida court on September 5, 1950, entered a temporary injunction restraining plaintiff herein ...