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Kilbride v. Kilbride

NOVEMBER 5, 1965.

KATHLEEN KILBRIDE, PLAINTIFF-APPELLEE,

v.

ROBERT E. KILBRIDE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. MAURICE E. SCHULTZ, Judge, presiding. Affirmed in part and reversed in part.

MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

Rehearing denied November 30, 1965.

This is an appeal by the defendant from certain post-decretal orders entered in the Circuit Court of Cook County, 6th Municipal District. The orders complained of were:

1) that the defendant was denied a change of venue;

2) that the court struck and dismissed a petition to vacate the decree of divorce without a hearing on the merits;

3) that the court denied defendant's motion to modify the decree of divorce as to alimony payments; and

4) that the court entered an order awarding plaintiff $500 attorney's fees.

The case grew out of a divorce decree entered October 11, 1962, by Judge Carl W. McGehee, in the City Court of Chicago Heights, Illinois. The divorce was granted to the plaintiff, Kathleen Kilbride, from Robert E. Kilbride, the defendant.

On June 11, 1962, plaintiff filed a complaint for divorce in the City Court of Chicago Heights. The defendant answered on August 17, 1962. On October 6, 1962, a stipulation was entered into between the parties which provided that the cause might be placed on the uncontested calendar of the court and set down for immediate hearing "on complaint and answer as a default matter." At the same time the parties entered into a stipulation with reference to property rights and alimony payments, together with support money for a minor child of the parties whose custody was to be awarded to the mother. On October 6, 1962, the cause was heard and a decree of divorce entered on October 11, which decree made the property agreement a part thereof.

On March 5, 1964, the court issued a rule on defendant to show cause why he should not be held in contempt of court for an alleged arrearage of $103 in alimony. On the same day the court permitted a substitution of attorneys, allowed the defendant to plead to the petition for the rule, and denied a motion made by the defendant that the matter be transferred to a judge assigned to hear post-decree motions in the Circuit Court of Cook County. On March 10, 1964, the defendant filed an answer to the petition, denying the allegations therein, and on March 13 the defendant asked leave to file a petition to vacate or modify the decree of divorce instanter, and also prayed for a change of venue from Judge Carl W. McGehee and Judge Maurice E. Schultz. Attached to the petition to vacate were the decree of divorce and the certificate of evidence. In his motion for change of venue the defendant set out that there was a cause pending before the court with reference to an order on the defendant to show cause theretofore entered by Judge McGehee, and that the petitioner feared he would not receive a fair and impartial trial before either Judge McGehee or Judge Schultz, with reference to the rule to show cause, the petition to vacate, or the petition to modify the decree. In that motion he stated that the prejudice first came to his knowledge "as of the commencement of these proceedings to vacate or modify the Decree of Divorce." He further prayed that the said judges should perform the ministerial act of giving him leave to file a petition to vacate or modify the decree of divorce instanter, and that an order for a change of venue should also be entered. On March 19, 1964, the defendant was given leave to file his petition, and the motion for change of venue was denied. The cause was reassigned to Judge McGehee for hearing.

At that time three matters were pending before the court; first, plaintiff's rule to show cause; second, defendant's petition to vacate the decree theretofore entered in the divorce action; and third, a prayer to modify the alimony payments ordered in the decree by virtue of a property agreement. The defendant had filed a motion for a change of venue from both Judge McGehee and Judge Schultz as to all three. With reference to the rule to show cause, the defendant's attorney, in his argument before the trial court, stated that defendant had no right to ask for a change of venue with reference thereto. Under those circumstances defendant can now have no complaint before this court.

Defendant's petition with reference to relief from the decree of divorce was brought under section 72 of the Civil Practice Act *fn1 (Ill Rev Stats 1963, c 110, § 72). Defendant urges that the Circuit Court erred in refusing to grant a change of venue before a hearing on this petition.

People v. Sheppard, 405 Ill. 79, 90 N.E.2d 78, was a case in which a judgment was entered against the defendant. Defendant filed a petition in the nature of a writ of error coram nobis under section 72 of the Civil Practice Act (Ill Rev Stats 1949, c 110, § 196). At that time the section provided that all errors of fact which would have been corrected by the writ of error coram nobis might be corrected by a motion made in the court in which the original error was committed. His motion in the nature of a writ of error coram nobis was assigned to the judge who had presided at the trial. The defendant was denied a change of venue. This ruling was upheld. The Supreme Court quoted from Chapman v. North American Life Ins. Co., 292 Ill. 179, 126 N.E. 732, where it was stated:

"`At common law the writ of error coram nobis could be sued out of the same court when a judgment at law was rendered to reverse the judgment, and before the same judge who rendered the judgment, for an error of fact that might be brought to the knowledge of the court that would be sufficient, of itself, to defeat the judgment.' See: 1 Holdsworth's History of English Law, p 224; 1 Black on Judgments, sec 300; 49 CJS, Judgments, sec 316. The reasons which required the old common-law writ to be presented to the same judge who rendered the original judgment obtain with like force under section 72 of the Civil Practice Act. ...


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