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Shemaitis v. Shemaitis

JULY 26, 1960.

LOUISE M. SHEMAITIS, PLAINTIFF,

v.

CHARLES J. SHEMAITIS, CHICAGO FEDERAL SAVINGS AND LOAN ASSOCIATION AND UNKNOWN OWNERS, DEFENDANTS. CHARLES J. SHEMAITIS, PETITIONER-APPELLANT,

v.

LEROY F. FROEMKE, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook county; the Hon. DANIEL A. ROBERTS, Judge, presiding. Affirmed.

MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.

Rehearing denied September 15, 1960.

This is an appeal from an order of the trial court denying appellant's motion to vacate all orders entered in the cause.

The factual situation is extensive, and the most that can be done here is to briefly summarize the contents chronologically.

Appellee was the purchaser of the property in question at a partition sale which resulted from an action brought against the appellant by his wife. The partition sale was the result of the following procedure:

November 3, 1947, the complaint for partition was filed by appellant's wife.

December 10, 1947, appellant was served and an appearance was filed by his attorney.

December 19, 1947, appellant's answer was filed, not claiming homestead.

March 4, 1948, the decree of partition was entered. The decree does not award homestead to anyone but finds that appellant's wife was the owner of one half of the property and orders partition of the premises.

In due course, the commissioners appointed by the court reported that there was no possibility of division without prejudice. This report was adopted by the court and a sale was ordered. Appellee purchased at the master's sale and the master's report of sale was filed and approved. A master's deed was delivered to appellee. Distribution was ordered. Appellant refused to accept his share and was subsequently cited for contempt when he refused to surrender possession of the premises. These orders were not effectively appealed.

On March 24, 1950, appellant filed a bill of review attacking the partition proceedings. On June 15, 1951, a motion to strike by appellee was sustained. Leave to appeal from this decree in this court was denied on July 22, 1952.

On September 3, 1953, a second bill of review was filed by appellant. This was dismissed on the ground that the cause of action had been barred by the judgment entered in the first bill of review suit. This court affirmed that decision on appeal (6 Ill. App.2d 324) and leave to appeal was denied by the Supreme Court (5 Ill.2d 631).

An appeal was also taken from the trial court's refusal, on October 10, 1955, to entertain "a motion to dispose of the motion to dismiss heretofore filed" on July 27, 1948. This court affirmed on ...


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