Appeal from the Superior Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding. Reversed and remanded with
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Eugenia Iczek filed a petition in this court asking leave to appeal from certain orders entered in the Superior Court of Cook County. One order, entered October 16, 1961, denied her petition to vacate the decree entered November 4, 1959. The other order, entered November 2, 1961, denied her amended petition to vacate the decree. The petition for leave to appeal was granted.
From the record it appears that on December 5, 1958 Eugenia Iczek, hereinafter referred to as the plaintiff, filed a complaint against Felix Iczek, hereinafter referred to as the defendant, praying for a divorce on the ground of cruelty, for temporary and permanent alimony, and for attorney's fees, and alleging that the parties were joint owners of income producing real estate. The defendant filed an answer to the complaint admitting that the parties were owners in joint tenancy of certain real estate, and alleging that he bought and improved the property with his own money. He denies the charges of cruelty alleged in the complaint, and alleges that the plaintiff deserted him without cause. On April 1, 1959 an order was entered giving defendant leave to file an amended answer and counterclaim within twenty days and granting the plaintiff an additional twenty days to plead. In that answer he denies the allegation of cruelty, states that he is out of work, and charges that the plaintiff committed adultery. In the counterclaim he alleges that the plaintiff committed adultery, that she became pregnant and had an abortion, and that she deserted their home in August 1958 without just cause or excuse. He further alleges that the plaintiff contributed nothing toward the purchase of the property and that all the money used in its purchase belonged to the defendant. He further states that the plaintiff is gainfully employed and asks that all orders for temporary support, etc., be postponed until the final hearing. He prayed that he be granted a divorce, that the plaintiff be divested of all interest in the real estate, and that she be denied alimony, attorney's fees and costs, and "for such other and further relief as his case may require."
Defendant on May 13, 1959 filed a notice, dated April 1, 1959, to take plaintiff's discovery deposition, and on May 13, 1959 the defendant filed a request, dated April 2, 1959, for eight admissions of facts. On May 8th the defendant served notice on counsel for plaintiff that he would appear in court on May 13th and present a motion asking that the order of support be vacated since he had lost his employment. (The record shows no order of support.) In that notice he also stated that he would ask the court on the same day that an appropriate order be entered to compel the plaintiff to answer interrogatories, to reply to the admissions of facts requested, and to direct her to appear for a discovery deposition. The defendant had filed a request for eight admissions of facts and had directed to the plaintiff twenty-seven written interrogatories. An order was entered May 13, 1959 to the effect that the plaintiff answer the questions she "feels she wants to answer and file objections to those she refuses to answer within 10 days," and the same order was entered on the request for admissions. On June 15, 1959 the court entered an order that all payments by the defendant to the plaintiff be stopped nunc pro tunc as of March 25, 1959 and that the support order of $25 be vacated.
The next motion is the one which causes the difficulty in the case. The notice, as it appears in the record, bears a filing date of October 13, 1959, is addressed to the attorney for the plaintiff, and is in part in words and figures as follows:
"Please take notice that on the
8th 13th day of July Oct A.D. 1959 at 10:00 a.m., or as soon thereafter as this motion may be heard, I shall appear before his honor, Judge Thad Adesko John Sbarbaro Rm 905 in the room usually occupied by him as a courtroom in the Courthouse, No. 100 to 148 North Clark Street, in the City of Chicago, or, in his absence, before any other judge, who may be sitting in his place and stead, and then and there Room 835
(a) present the motion of the undersigned that Move for an order under Supreme Ct Rule 19-12, etc.
(b) present a petition, a copy of which is herewith served upon you, at which time and place you may appear if you so desire.
/s/ Stanley Stoller Attorney for Def and Counter-Plaintiff." *fn1
On the back of that notice the following appears:
"STATE OF ILLINOIS | > ss. COUNTY OF COOK |
Stanley Stoller being first duly sworn, deposes and says that he served the within notice and petition therein referred to upon Atty Leon Kupeck by mailing copy of the same to said Atty for the Plaintiff and ____ on the 1st day of July A.D. 1959 at 5:00 o'clock p.m. at Mail Box 1608 Milwaukee Av. Chicago, 19 __.
Below the signature of Stanley Stoller appears the following:
"Subscribed and sworn to before me this 1st day of July A.D. 1959. ...