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Holmes v. Kammerman

MAY 29, 1956.

ROBERT H. HOLMES, APPELLANT,

v.

CLARENCE KAMMERMAN ET AL., APPELLEES.



Appeal from the Superior Court of Cook county; the Hon. JOSEPH A. TROY, Judge, presiding. Order affirmed.

JUDGE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

This is an action for false arrest and imprisonment growing out of a divorce case instituted by plaintiff in February 1948 against defendant Florence Garrett Holmes. The other two defendants, Clarence Kammerman and Hugh E. Johnson, were Mrs. Holmes' attorneys in that case.

The court on motion dismissed the complaint June 21, 1955. A motion to vacate that order was made by plaintiff and on September 12, 1955 the court entered an order denying the motion to vacate. Plaintiff appealed from that order. He has not appealed from the order of June 21, 1955 dismissing the complaint. The motion to vacate is unsupported by affidavit and does not present an adequate basis upon which the court could be required to vacate the order. Soverino v. Baltimore & O.R. Co., 2 Ill. App.2d 357. It merely asserts and argues matters which were or should have been presented to the trial court at the time of the hearing on the motion to dismiss. If dissatisfied with the court's ruling on the motion to dismiss plaintiff should have prosecuted his appeal therefrom. A motion to vacate is not a proceeding to prolong or delay a final adjudication. But as defendants have undertaken to argue and discuss the questions involved on the motion to dismiss, we will here consider them.

The complaint charges that on February 17, 1948 plaintiff filed a complaint for divorce in Saline County, Illinois; that subsequently Florence Garrett Holmes engaged defendants ClarenceKammerman and Hugh E. Johnson to represent her; that a decree of divorce was entered; that an appeal was taken to the Appellate Court; that while the appeal was pending the trial court on November 18, 1948 wrongfully assumed jurisdiction and entered an order upon plaintiff to pay $450 as and for appeal costs and attorneys' fees for defendant in connection with the appeal from the divorce decree. (Plaintiff had appealed from the money provisions and a cross-appeal from the provision granting the divorce had been filed by defendant Florence Garrett Holmes.) The complaint then charges that defendants wrongfully caused a mittimus to be issued for plaintiff's arrest and that on December 18, 1952 plaintiff was taken against his will to the office of the Sheriff of Saline County and there imprisoned for several hours, during which time he suffered great indignity. The complaint further charges that on January 18, 1954 it was held that the order of November 18, 1948 was null and void and that thereby plaintiff sustained damages in the sum of $15,000.

To this the defendants filed their motion for involuntary dismissal. Among other grounds they alleged that the action in question was barred by a prior judgment. (Ill. Rev. Stat. 1953, ch. 110, sec. 172, subd. (2).) They contend that the order of November 18, 1948, the invalidity of which is the basis of plaintiff's action, had been repeatedly attacked by plaintiff in both the trial and appellate courts and that it continued to stand as a valid order which could not be attacked collaterally. They also contend that the decree entered January 13, 1954, whereby plaintiff paid the defendant attorneys' fees constituted an accord and satisfaction and that the release of Florence Garrett Holmes then given released all the defendants. (Ill. Rev. Stat. 1953, ch. 110, sec. 172, subd. (g).) The motion to dismiss and the affidavit in support thereof reveal the facts which follow and which are unchallenged by any counter-affidavit.

After the filing of the divorce case in 1948 the matter was called for trial, a jury was impaneled, and at the conclusion of the first day's proceeding the court called the parties into chambers for a conference. Defendant Florence Garrett Holmes agreed to a property settlement whereby her husband was to pay her $150 for certain clothing, $90 traveling expenses, $250 attorneys' fees, and $150 in thirty days for the return of an engagement ring. The court heard testimony with respect to the grounds for divorce and on June 9, 1948 entered a decree embodying the property settlement and granting the husband a divorce. On June 14, 1948 plaintiff filed a notice of appeal to the Appellate Court from that portion of the decree ordering the money payments. Defendant Florence Garrett Holmes filed a cross-appeal from the divorce decree. On November 18, 1948, while the appeal was pending, the court on petition of Florence Holmes ordered plaintiff to pay his wife $150 in costs and $300 attorneys' fees to enable her to defend against the appeal from the divorce decree. This was done pursuant to the statute which provides that:

"In case of appeal by the husband or wife, the court in which the decree or order is rendered may grant and enforce the payment of such money for her or his defense and . . . alimony during the pendency of the appeal. . ." (Divorce Act, Ch. 40, Sec. 16, Ill. Rev. Stat. 1955.)

Plaintiff never complied with this order although during the period of approximately six years in which this case was pending he sought to invalidate that order in five different proceedings and failed. We will here enumerate them.

First, on December 8, 1948 he sought a writ of mandamus from the Appellate Court for the Fourth District to compel the trial court to expunge the order of November 18, 1948 from its records. This writ was denied by the Appellate Court.

Second, following the denial of his petition for a writ of mandamus, plaintiff sought to amend the notice of appeal filed June 14, 1948, before referred to, so as to include an appeal from the order of November 18, 1948. The Appellate Court for the Fourth District dismissed this proceeding May 9, 1949. The court at the same time granted the cross-appeal of Florence Holmes and reversed the decree of divorce. (Holmes v. Holmes, 337 Ill. App. 648.)

Third, on November 21, 1950 a petition seeking to have plaintiff held in contempt for failure to comply with the order of November 18, 1948 came up for hearing on plaintiff's motion to dismiss. Plaintiff resisted on the ground that the appeal divested the court of jurisdiction. The court held against plaintiff, found him guilty of wilful contempt, entered minutes in the docket that plaintiff be assessed a fine of $500 payable in ten days or be committed to jail until the fine was paid, and further ordered that judgment be entered and execution issue for the amount due under the order of November 18, 1948.

Fourth, on November 30, 1950 plaintiff took an appeal from the contempt order to the Appellate Court for the Fourth District which, upon motion, was dismissed.

Fifth, on June 1, 1951 plaintiff sought a rehearing on the contempt petition on which he was fined and ordered imprisoned until he paid the fine. His motion was overruled, a commitment order was entered of record, and plaintiff was ordered committed to jail for a period not to exceed six months, until he purged himself of contempt by paying the amount due under the order of November 18, 1948, and the fine against him, heretofore referred to, was duly assessed.

Notwithstanding all this, plaintiff never complied with the order of November 18, 1948 and apparently the only time he was taken into custody, according to his complaint, was on December 18, 1952, when he was taken to the office of the Sheriff of Saline County and there held for the space of ...


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