Appeal from the Superior Court of Cook county; the Hon. ROBERT
F. COTTON, Judge, presiding. Order reversed and cause remanded
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order entered in the superior court of Cook county denying a petition to vacate a decree which granted plaintiff a divorce and dismissed defendant's counterclaim for separate maintenance.
April 9, 1952 an unsworn complaint for divorce was filed by James J. McKeon against Martha McKeon alleging extreme and repeated cruelty. Summons was issued and an appearance was filed by defendant on May 5, 1952. The defendant filed an unsworn answer on May 12, 1952 denying all the allegations in the bill except the allegations as to residence, marriage and the birth of a child. On the same date the defendant filed a sworn counterclaim for separate maintenance, alleging that the parties lived and cohabited as husband and wife until on or about February 29, 1952, when the counterdefendant willfully deserted and absented himself from the counterplaintiff, and has persisted in such willful desertion until the present time; that she is now living separate and apart from the counterdefendant without fault on her part. The counterclaim also has allegations with reference to the employment of the counterdefendant and a prayer for alimony and support money for the minor child. It appears from the record that no reply or answer was filed to this counterclaim.
On May 28, 1952, on the petition of the defendant, an order was entered by the court allowing the defendant the sum of $70 a month for temporary support of the minor son of the parties, who was aged 16, and it was further ordered that a preliminary hearing be held on June 27, 1952. The preliminary hearing was continued from time to time, and finally to September 10, 1952. No hearing was held. On September 10, 1952 the petitioner filed a petition for a rule to show cause against the plaintiff for failure to comply with the order of court with reference to payment of attorney's fees, and a rule was entered against the plaintiff, which rule was dismissed on motion of the defendant on September 30, 1952, the fees having been paid.
The record shows that on May 8, 1953, the cause coming on to be heard on the regular call, it was assigned to Judge Cotton. A hearing was had before Judge Cotton the same day. At the trial of the case the defendant and counterplaintiff did not appear, nor was she represented by counsel. Evidence was heard on the part of the plaintiff and counterdefendant, and on May 14th the court entered a decree for divorce.
The first paragraph of the decree reads as follows:
"This cause coming on to be heard on the regular contested divorce calendar upon the complaint of James J. McKeon, the Answer and Counterclaim of Martha McKeon and the Answer of Plaintiff thereto and the Court having considered the same and having heard the sworn testimony of witnesses, FINDS: . . ."
The decree also provides: "Defendant has failed to prosecute her counterclaim and said complaint should be dismissed." The custody of the minor child was awarded to the defendant and it was decreed that the plaintiff should pay the sum of $70 a month for support and maintenance. With the decree was filed a transcript of the evidence.
On August 18th, by leave of court, the defendant and counterplaintiff filed a sworn petition to vacate and set aside the decree of divorce and the order in the decree dismissing the counterclaim for separate maintenance, in which petition the defendant alleges that neither the defendant and counterplaintiff nor her attorney had any knowledge of the entry of the decree of the court until August 7, 1953; that no notice of the presentation of the decree and transcript of evidence on May 14, 1953 was given to the defendant or her attorney; that the recitation of the decree of divorce that the case was heard on the plaintiff's complaint, answer and counterclaim by the defendant, and the answer thereto by the plaintiff, was not true inasmuch as no answer had been filed by the plaintiff to the defendant's counterclaim; and that the case, therefore, was not at issue at the time heard for trial. The petition further alleges that the parties had lived together as husband and wife until February 29, 1952, when the plaintiff told the defendant that he had fallen in love with another woman and wanted a divorce; that on the date when the case first came on the contested divorce calendar April 23, 1953 the attorney for the defendant and counterplaintiff was at home attending to his sick mother; that the case was thereupon continued to May 8, 1953 without any order appearing in the docket or the case file; that no notice was given to the defendant or her attorney of such continuance; and that the evidence of the plaintiff and his witnesses with reference to the acts of cruelty was false and was not sufficient to sustain the decree for divorce.
On September 24, 1953 the plaintiff and counterdefendant filed, by order of court, a sworn answer to the petition, in which he alleged that the case appeared on the trial call of the contested divorce cases in its regular position in the assignment court on April 23, 1953 and was set for trial May 8, 1953, on which day it was assigned to Judge Cotton as a contested case; that he admits no notice of the presentment of the decree was given; that he denies the allegations that no answer to the counterclaim was filed, but alleges that an answer was filed by him "in the office of the Clerk and a carbon copy of same produced at the hearing." He further alleges that prior to April 23, 1953 notice was given in the Chicago Daily Law Bulletin that the case would be called on April 23, 1953, that on April 23rd the case was called and set for May 8, 1953; that the Law Bulletin on April 23rd carried a memorandum that the case was set for May 8, 1953, and on May 7th listed the case as being on the call for trial at 10:00 a.m. the following day. He denied all the other allegations in the petition, and says that the defendant was guilty of negligence in not protecting her interests and cannot now be heard to complain as she had her day in court; that the plaintiff has since remarried and his rights and the rights of an innocent third party would be greatly prejudiced.
The court heard the petition and answer on the merits. Evidence was introduced. The court entered an order denying the petition of the defendant and counterplaintiff to vacate the decree for divorce and order dismissing her counterclaim, to the entry of which order an exception was taken.
The trial court filed a memorandum opinion with its order, in which it states:
"As to the procedural aspects of the case, it is alleged that the plaintiff had failed to file an answer to the counterclaim of the Defendant. However, this matter, having been adjudicated in the decree, it is presumed that the Court had all evidence before it to sustain its finding in that respect. Furthermore, to say that the answer to the counterclaim was not in the file some time after the decree was entered, is not of any evidentiary value that it was not in the file at the time of the trial or hearing. Indeed, it may be said further that the fact that it was not in the file at a later date, if such was the case, is not even persuasive that it was not in the file at the date of the trial."
The court found that the case was handled in the usual, regular and customary manner. In the memorandum opinion it is further stated:
"It is furthermore argued by petitioner that some sort of notice should have been given to the defendant. Such is not the procedure under the facts and circumstances of this case. If the pleadings were settled, it was then a matter of the trial court ...