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French v. French

SEPTEMBER 9, 1963.




Appeal from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding. Affirmed.


Defendant filed a petition under Section 72 of the Civil Practice Act to vacate a divorce decree. Plaintiff's motion to strike the petition was allowed. Subsequently, another similar petition was filed by defendant. This petition was dismissed for want of equity and defendant has appealed from both orders.

On January 4, 1960, plaintiff filed suit for separate maintenance, charging her husband with three acts of cruelty, and alleging that he had gone to Nevada with the intention of procuring a divorce there and then returning to Illinois, thus circumventing the laws of Illinois. Plaintiff sought support for herself and the minor child of the parties who was in her custody. She also sought an injunction to restrain defendant from proceeding with a divorce action in any foreign jurisdiction.

On January 27, 1960, an amended complaint was filed whereby plaintiff requested a decree of divorce, alimony, child custody and support as prayed in the original complaint, and conveyance to her of the parties' home and summer home. She also reaffirmed her request for an injunction, and such a writ was issued on January 27, 1960. The parties became reconciled, however, and on February 23, 1960, the injunction was dissolved. On July 5, 1960, attorneys appeared and answered on behalf of defendant denying most of the allegations of the divorce complaint, except that defendant had gone to Nevada. *fn1 The answer stated that the parties were living together again, and asked that the complaint be dismissed, but no such order was ever entered.

Thereafter, on December 22, 1960, after proper notice and by leave of court, plaintiff filed a supplement to her amended complaint for divorce realleging most of what had appeared in the previous pleadings and adding that, after reconciliation, defendant had again been guilty of an act of physical violence against plaintiff and had again gone to Nevada to establish a "pseudo-residence" for the purpose of obtaining a divorce. It was further alleged that the summer home in Wisconsin had been purchased with plaintiff's funds and that she had been tricked by defendant into signing a deed therefor in blank which her husband had used to invest himself with the title after mesne conveyance to his adult son, Paul W. French, Jr.

The order of December 22 also directed defendant to plead to the supplemental complaint within 30 days, and again enjoined defendant from instituting a divorce action in any foreign jurisdiction. In the same order plaintiff's motion for temporary alimony, child support and attorney's fees was set for hearing on January 12, 1961. Defendant's motion to dissolve the injunction was also noted in the order and set for hearing on the same date.

On January 9, 1961, defendant's attorneys notified their client that on January 12, when all of these matters were to come up for hearing, they would move to withdraw as his attorneys. Their notice was sent to defendant by air certified mail "c/o General Delivery, Las Vegas, Nevada." On January 12, their motion to withdraw as defendant's attorneys was allowed, the court's order stating "and it appearing to the court that due and timely notice has been given to all parties concerned, and that the notice to the defendant, Paul W. French, was sent by air mail certified to the last known mailing address of the said Paul W. French, namely, c/o General Delivery, Las Vegas, Nevada and the court being fully advised in the premises"; . . .

Also on January 12, 1961, the court denied defendant's motion to dissolve the injunction of December 22, 1960 and amended that injunction order by adding a provision restraining defendant and others from transferring title to the Wisconsin property. This writ of injunction was sent to defendant by certified mail "c/o General Delivery, Las Vegas, Nevada."

About two weeks thereafter, on January 25, 1961, again on motion of plaintiff, and after notice, an order was entered defaulting defendant for having failed to plead to the supplemental complaint within the 30 days prescribed by the order of December 22, 1960. The supplemental complaint was taken as confessed against defendant, and the cause was set for hearing on January 30. In entering this order, the court found that "proper and timely notice" had been duly served upon the defendant. The notice referred to had been sent air mail by plaintiff to defendant "c/o General Delivery, Las Vegas, Nevada" stating that on January 25 plaintiff would move to have defendant adjudged in default and the cause set down for hearing.

At the hearing on January 30, 1961, plaintiff's evidence was presented, and on February 1, 1961 a decree of divorce was entered on the terms which she had requested. Attorney's fees were allowed to plaintiff's attorney who, on February 18, sent air mail notice to defendant at the same Nevada address that on February 23 he would move to reduce his fee award to judgment, and on that date an order was entered accordingly with execution being directed to issue therefor.

Defendant filed his first petition under Section 72 on July 11, 1961 alleging that he did not receive notice of his attorneys' withdrawal until January 20, 1961; *fn2 that he did not get proper notice of the injunction orders or of the filing of plaintiff's supplemental complaint, or of the order requiring him to plead thereto; that he had no notice that he was in default or that a motion to default him had been made; and that he had no notice that the cause had been set for hearing, or that a decree had been entered. As recited above in this opinion, it is apparent from the record that notice had been sent to defendant at each of these stages in the litigation, but defendant's primary objection is that the notices were insufficient because the address to which they were sent was improper.

Since the issues relating to defendant's first petition to vacate arose on plaintiff's motion to dismiss, it may be conceded that all well pleaded facts in the petition must be taken as true. Pierce v. Carpenter, 20 Ill.2d 526, 531, 169 N.E.2d 747. Conclusions of law, however, are not admitted by such a motion to dismiss, and the sufficiency of notice is a legal as well as a factual question. It is governed by rules of the Supreme and Circuit Courts. Pertinent parts of these rules are as follows:

Circuit Court Rule 2.1.

(a) . . . written notice of the hearing of all motions shall be given to all parties who have appeared and have not theretofore been found by the court to ...

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