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The People Ex Rel. Doty v. Connell

OPINION FILED SEPTEMBER 25, 1956.

THE PEOPLE EX REL. MAE DOTY, APPELLANT,

v.

FRANCIS X. CONNELL, CLERK OF THE CIRCUIT COURT OF COOK COUNTY, APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. HARRY M. FISHER, Judge, presiding.

MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 19, 1956.

This case involves the constitutionality of a 1955 amendment to the Divorce Act, which provides that actions for divorce "shall be commenced by filing a praecipe for summons" and which prohibits the filing of the complaint and entry of the decree for a period of 60 days from the day the summons is served or the last day of publication of notice, unless leave of court is obtained in the manner outlined. Ill. Rev. Stat. 1955, chap. 40, pars. 7a, 7b, 7c, 7d, 7e; Laws of 1955, p. 2114; H.B. No. 786.

The circuit court of Cook County refused appellant's request for mandamus to compel the clerk of that court to receive and file her complaint for divorce despite her refusal to commence the suit by filing a praecipe for summons as required by said statute. The constitutional validity of a statute being involved, this court has jurisdiction on direct appeal.

In asserting constitutional objections, the appellant relies mainly upon People ex rel. Christiansen v. Connell, 2 Ill.2d 332, which invalidated a 1953 amendment to the Divorce Act containing somewhat similar provisions. However, the appellee contends that this legislation does not have the features condemned in the Christiansen case and that the decision is actually an authority in support of the present act.

The 1953 statute considered in the Christiansen case contained three significant provisions (none of which is included in the 1955 act) modifying the practice and procedure in divorce, separate maintenance and annullment. First, it required, as a condition precedent to the commencement of an action for divorce, separate maintenance or annullment, that the plaintiff file a "statement of intention" to institute the action. Second, it provided for a mandatory waiting period after the filing of the statement of intention of 60 days before suit could be instituted, summons issued, and jurisdiction obtained over the person of the defendant. Third, it provided for a voluntary informal conference during the 60-day waiting period, directed to reconciliation of the parties and to be participated in by the court and one or both of such parties.

We held the legislation unconstitutional on two grounds: (1) The 60-day prejurisdictional waiting period denied to the plaintiff a right of access to the courts in violation of section 19 of article II of the Illinois constitution. (2) The voluntary reconciliation conference imposed non-judicial duties upon judges in violation of the separation of powers provisions of article III of the Illinois constitution.

In an obvious effort to cure these defects, the legislature omitted from the present act all mention of reconciliation conferences and provided for immediate commencement of the suit by the filing of a praecipe for summons, with the consequent prompt obtaining of jurisdiction of the subject matter and the parties.

In holding the 1953 act invalid we pointed out that it differed from so-called "cooling off period" statutes in force in other States in that the latter provided for periods of delay subsequent to the institution of the action for divorce or the service of process, and prior to hearing or the entry of a decree. With reference to these statutes of other jurisdictions requiring the lapse of given periods of time after the filing of suit or service of process, we declared that "Such legislation applies uniformly to all litigants and does not involve any delay of access to the courts." People ex rel. Christiansen v. Connell, 2 Ill.2d 332, 345.

Likewise, the instant statute provides immediate access to the courts by a procedural means applicable alike to all litigants, with no delay being interposed before jurisdiction is obtained. The commencement of a suit by the filing of a praecipe for summons, a practice familiar to most Illinois lawyers, was in effect in this State for over a hundred years preceding the enactment of the Civil Practice Act of 1933 (Puterbaugh, Common Law Pleading and Practice, 10th ed. sec. 9,) and still prevails in the municipal court of Chicago (Ill. Rev. Stat. 1955, chap. 37, par. 395,) and in municipal courts organized under the general Municipal Court Act. Ill. Rev. Stat. 1955, chap. 37, pars. 459, 469a.

Therefore, the statute in question does not fall under the constitutional inhibition elaborated in the Christiansen case. However, it does retain a form of "cooling off period;" and while post-jurisdictional delays of this type were approved inferentially in the Christiansen case, the question warrants further consideration and discussion.

The parties agree there was no right of divorce in the common law, and the legislature could abolish the statutory remedy altogether. Moreover, "an action for divorce involves interests other than those of the parties litigant. The State, as the sovereign, has an interest in maintaining the integrity and permanency of the marriage relation." (Ollman v. Ollman, 396 Ill. 176, 181. See also Leland v. Leland, 319 Ill. 426.) It follows that the legislature, as an exercise of its police power and to promote the public welfare, may adopt any reasonable rules regulating divorce that do not conflict with the Illinois and Federal constitutions.

The "60-day cooling off period" provision is designed to effectuate a legislative policy directed toward affording an opportunity for reconciliation of the parties prior to hearing and decree. This court in previous decisions has recognized the laudable purposes which are sought to be achieved by legislation of this type. See, for example, People ex rel. Christiansen v. Connell, 2 Ill.2d 332, 346.

Similar statutes providing for a lapse of time after institution of the suit but prior to hearing or entry of decree, are in force in the following twelve States: Arizona (Ariz. Code Ann., chap. 21, sec. 21-1202); Colorado (Colo. Stat. Ann. 1935, chap. 56, sec. 10(1), Laws 1945, p. 316, ยง 2); Connecticut (Conn. Gen. Stat. 1949, chap. 367, sec. 7333); Indiana (Burns' Ind. Stat. Ann., Title II, sec. 801, Acts 1947, chap. 94); Kansas (Kan. Gen Stat. Ann. 1949, chap. 60, art. 15, sec. 60-1517); Michigan (Mich. Stat. Ann., sec. 25.89); Nebraska (Neb. Rev Stat. 1943, chap. 42, sec. 305.02); Ohio (Ohio. Gen. Code, 1951 Supp., chap. 2, sec. 8003-10); South Carolina (S. Car. Code, 1952, Title 20, chap. 2, sec. 20-108); Texas (Vernon's Tex. Stat., Ann., chap. 4, sec. 4632); Vermont (Ver. Rev. Stat. 1947, sec. 3255); Washington (Rem. Rev. ...


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