Appeal from the Superior Court of Cook county; the Hon.
THADDEUS V. ADESKO, Judge, presiding. Order reversed and cause
remanded with directions.
PRESIDING JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 22, 1959.
Defendant appeals from an order dismissing her petition to vacate a divorce decree entered in the Superior Court on May 31, 1938. The petition was filed in the same proceeding in which the decree was entered, and alleged that, although regular on its face, the affidavit of non-residence which formed the jurisdictional basis of the 1938 decree was defective in that plaintiff, knowing defendant's correct address in Leipzig, Germany, where she then resided, fraudulently concealed that fact in executing the affidavit of non-residence; that, as a consequence of the fraudulent concealment, the clerk of the court mailed notice of the publication to her at her then seven-year old and incorrect address in Chicago; that the notice never reached her; and that consequently she did not know of the pendency of the divorce suit, could not appear, could not defend, and could not ask for proper orders regarding alimony and support. In the interim between the entry of the decree and the filing of the petition, plaintiff had become a resident of California, and was notified by registered mail of the pendency of the petition, a copy of which was attached to the notice. He appeared specially to contest the jurisdiction of the court, and moved to dismiss the petition on the ground that the court had no jurisdiction of his person, setting forth various reasons therefor. His motion was sustained, and the petition dismissed.
The present section 72 of the Civil Practice Act (Ill. Rev. Stat. 1957, ch. 110), which became effective January 1, 1956, first abolishes certain remedies theretofore available to attack orders, judgments, and decrees more than thirty days after their entry. Then it substitutes for the relief formerly to be had by those remedies a petition proceeding. It provides that such petition should be filed in the same proceeding not later than two years after the entry of the judgment or decree, and then, in subsection 7, it provides that "any existing right to relief from a void order" shall not be affected by the preceding paragraphs of section 72. It clearly left available to all litigants and all courts the direct method, a proceeding by motion or petition in the original proceeding, to set aside a void order at any time. This is the relief to which sub-section 7 refers.
On the same day that section 72 became effective, the Supreme Court of Illinois adopted rules to implement the requirements of that section. Rule 7-2 provides that notice of the filing of a petition for relief from a final decree after thirty days from the entry thereof shall be given by the same methods provided for the giving of notice of additional relief to parties in default; one of these is by prepaid registered mail addressed to the party, return receipt requested, delivery limited to addressee only. Rule 7-1 designates the several methods for giving notice of additional relief against parties in default.
It must be conceded at the outset that the petition of the wife to vacate the decree set forth facts which, if proved, would put plaintiff in the position of having practiced a fraud upon defendant and upon the court; if such fraud was practiced, the court did not have jurisdiction of the person of the wife at the time of the entry of the decree, and the decree would therefore be void. The precise question presented is whether a proper method was used to invoke the exercise of the court's power to vacate an allegedly void decree. From authorities later cited, it appears that there has always existed in Illinois the remedy, by petition or motion, to set aside a judgment or decree procured by fraud upon the court. Such a petition or motion could be filed in the original proceeding, and the utmost necessity, as far as notice was concerned, was the actual notice to the person who perpetrated the fraud. That practice was based upon the theory that such a decree was a nullity from its beginning.
This remedy was at all times coexistent with all the remedies that are abolished by paragraph 1 of section 72 of the Civil Practice Act as it is now amended; therefore, it was an existing remedy. Paragraph 7 of section 72 clearly refers to this remedy; to hold otherwise would render the paragraph a complete nullity. As an inherent part of the right of a court to set aside a decree where jurisdiction was obtained by fraud imposed upon the court, there was no limitation to that right in point of time; it could be done whenever the court was advised of the existence of fraud. This right was not limited to defects which appeared on the face of the record and could be ascertained by extrinsic evidence; in many cases it has been exercised by the filing of a petition or motion in the original proceeding, after term time, charging the existence of such facts as are alleged in the instant petition; a hearing was then had upon the motion or petition in the original proceeding, and the court thereupon exercised its jurisdiction to vacate or set aside the decree or judgment obtained by fraudulent representation relating to the jurisdiction of the court. To deny a court the right to set aside, at any time, a judgment or decree where it did not have jurisdiction of the parties because of a fraud perpetrated upon the court by one of the parties would be in complete derogation of its right to protect its integrity and the validity and sanctity of its decrees.
The law in Illinois relating to judgments void for want of jurisdiction caused by fraud is clearly set forth in 23 I.L.P. Judgments § 174 and § 175, as follows:
"§ 174. ___ ___ Invalid Judgment
"A void judgment may be vacated on a motion made at any time.
"If a judgment is void a motion to vacate or expunge it is not affected by the passage of time, and the judgment may be set aside on motion made in the trial court at any time or court term after its entry.
"Thus, where a decree or judgment is void for want of jurisdiction of the person of the defendant, or where a court entering a judgment exceeds its jurisdiction, and the judgment or decree transcends the statute conferring jurisdiction on the court, the judgment or decree may be vacated or expunged on a motion made at any time.
"The doctrines of laches and estoppel do not apply to a motion to ...