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Jamieson v. Jamieson

AUGUST 22, 1957.

EMMA JAMIESON, PLAINTIFF-APPELLANT,

v.

WALLACE

v.

JAMIESON, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Rock Island county; the Hon. A.J. SCHEINEMAN, Judge, presiding. Affirmed.

JUSTICE CROW DELIVERED THE OPINION OF THE COURT.

Emma Jamieson, plaintiff below and appellant here, filed her complaint for divorce in the Circuit Court of Rock Island county. The defendant below and appellee here, Wallace V. Jamieson, moved to dismiss the complaint on the grounds that appellant had as a matter of law participated in a prior divorce proceeding between the same parties in the state of Arkansas. The trial court granted the motion and dismissed the complaint.

Appellant contends that she did not participate in the trial of the Arkansas divorce and that consequently the Circuit Court of Illinois is not precluded from examining into the jurisdiction of the Arkansas Court in entering its decree and therefore the Circuit Court of Rock Island county erred in dismissing the complaint without hearing evidence as to the defendant's good faith in establishing a residence in Arkansas for the purpose of obtaining a divorce.

Appellee's theory of the case is that appellant participated in the divorce proceedings in Arkansas and was accorded full opportunity to contest the jurisdictional issues in that case; that the Arkansas decree for divorce is not susceptible to collateral attack in Arkansas; and consequently no collateral attack can be made in Illinois on that divorce decree.

An examination of the record discloses that Mrs. Jamieson procured a decree of separate maintenance from Mr. Jamieson in the Circuit Court of Rock Island county, on January 6, 1949. On May 2, 1952 Mr. Jamieson filed a suit for divorce from Mrs. Jamieson in Independence county, Arkansas. In the complaint Mr. Jamieson alleged that he moved to Independence county, Arkansas, on February 20, 1952 ". . . with the intent then and there of becoming a bona fide resident of Independence county, Arkansas, and has since that date been domiciled in Independence county, Arkansas, having rented a home there and having secured employment in said county and has lived in said county continuously since removing here from Rock Island county, Illinois" and that appellant, Mrs. Jamieson, was a non-resident.

The Chancery Court of Independence county, Arkansas, in accordance with the procedure of that forum, appointed an attorney, Caldwell T. Bennett, to represent the non-resident, Mrs. Jamieson. On May 3, 1952 Bennett wrote Mrs. Jamieson advising her that Mr. Jamieson had commenced the divorce proceeding in Arkansas, gave her data from the complaint, stated he had been appointed attorney ad litem to represent her and that the cause should come on for determination on June 3, 1952. With such letter Bennett enclosed a copy of the complaint for divorce.

Mrs. Jamieson engaged Illinois counsel and on May 24, 1952 her Illinois attorneys replied to the letter of the Arkansas attorney stating that Mrs. Jamieson definitely desired to resist the suit for divorce, enclosing a copy of the earlier separate maintenance decree in the suit between the parties in Rock Island county, Illinois. The letter suggested the separate maintenance decree as a defense; that additional time to plead be obtained; requested Bennett to advise what facts or information be needed to resist the suit; stated that if Bennett deemed it advisable perhaps Mrs. Jamieson and Illinois Counsel could meet with Bennett in Arkansas for the hearing or a preliminary conference; the fee for Bennett was mentioned; and the letter concluded by inviting negotiations for the settlement of the dispute between the parties by a suitable property division.

The pleadings and exhibits in the instant case contain no further communications from Bennett but two additional letters addressed to him by Mrs. Jamieson's Illinois Counsel were introduced. These contain counter settlement proposals and have no further reference to the merits of the Arkansas action for divorce except that in one it is stated that Mrs. Jamieson preferred to procure the divorce in Illinois.

On September 8, 1952 Bennett filed a response in the action for divorce stating he had advised Mrs. Jamieson of the action; had received a letter from her Illinois attorneys advising that they wished to resist the action; that he had received the decree for separate maintenance entered in the Illinois court; that he had received additional letters which he attached as exhibits; that he had been advised of no defense Mrs. Jamieson had to the action; that he knew of no defense; but denied each allegation in the complaint.

Mr. Jamieson secured a decree of divorce in the Chancery Court of Independence county, Arkansas on September 8, 1952. No appeal was taken from the decree of divorce. On April 27, 1953 appellant, Mrs. Jamieson, filed her verified motion in the Arkansas Court to vacate the said decree for divorce. In the motion to vacate she urged that Mr. Jamieson was not a bona fide citizen and resident of Arkansas at the time of the filing of his petition nor at the time of the rendition of the decree for divorce. On December 1, 1953 the motion to vacate the divorce decree was dismissed by the trial court. The order of dismissal recites "the defendant appearing by her attorney, C.T. Bennett."

On the same day, December 1, 1953, notice of appeal was filed in the Arkansas Court by Bennett and appeal perfected by him as attorney for Mrs. Jamieson. The opinion of the Arkansas Supreme Court was delivered on June 14, 1954, 223 Ark. 845, 268 S.W.2d 881, wherein the decree of the lower Arkansas Court dismissing the motion to vacate was affirmed.

On July 13, 1955 appellant filed the instant action for divorce on the grounds of desertion in the Circuit Court of Rock Island county, securing personal service on appellee in said county. On August 13, 1955, appellee filed a motion to strike appellant's action for divorce setting up among other things that the Illinois Court lacked jurisdiction in that the same parties were divorced by the Arkansas decree of 1952, in which action appellant appeared by counsel. Appellee's motion to dismiss was supported by his affidavit and thirteen exhibits.

On February 28, 1956 appellant filed a counter-motion to dismiss appellees motion to strike the complaint, alleging among other things that appellee was never a bona-fide resident of Arkansas as shown by the pleadings. At a hearing on both motions the Circuit Court of Rock Island county sustained appellee's motion to strike the complaint upon the sole ...


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