Appeal from the Circuit Court of Rock Island County, General
Division; the Hon. CHARLES J. SMITH, Judge, presiding. Reversed
and remanded with directions.
The proceeding from which this appeal is taken originated as a Declaratory Judgment action against Mamie Lehman, Defendant, by Bernard E. Newton as Plaintiff, requesting that the Circuit Court of Rock Island County find that the claim of Defendant that she was the wife of Plaintiff by virtue of a purported common-law marriage in Iowa was not true and requesting that the court find the parties to be not legally married. Defendant has never resided in Illinois. Any common-law marriage involved in the proceeding would have been entered into in the State of Iowa on the basis of pleadings filed in the cause.
Defendant, Mamie Lehman, a resident of Iowa when the suit was commenced was served with summons outside of the State of Illinois. Such Defendant entered a special appearance in a motion to quash return of service. The motion was overruled on October 16, 1963, and Defendant was given twenty days within which to plead. No pleading was filed, and on November 20, 1963, the Circuit Court held the defendant to be in default and on December 17, 1963, a decree was entered by the court decreeing that no common-law marriage existed between the parties. Plaintiff notified Defendant's attorney by mail and by telephone that a hearing would be held on the merits of the Declaratory Judgment action on November 20, 1963. Defendant did not appear on that date and the court entered an order of default. On December 17, 1963, the court entered an order decreeing that there was no common-law marriage between the parties.
On January 8, 1964, Defendant Mamie Lehman filed a verified answer and counterclaim for separate maintenance in which she alleged the parties were husband and wife and that Plaintiff had abandoned their home. In such answer and counterclaim, Defendant asserted that she was Mamie Newton Lehman and that she and plaintiff were husband and wife by virtue of a valid common-law marriage under the laws of the State of Iowa and she prayed for separate maintenance. On January 16, 1964, within 30 days of the entry of the default and the Declaratory Judgment Order, Defendant filed a motion to vacate such orders. The motion alleged that the court had no jurisdiction over the defendant, a nonresident, and likewise had attached thereto and made a part thereof, a copy of the verified petition in equity filed in the District Court of Scott County, Iowa, entitled Bernard E. Newton v. Mamie Newton, in which Bernard E. Newton presumably stated that the parties began living together as husband and wife and that such actions on part of Plaintiff and Defendant constituted a common-law marriage and that the parties recognized the common-law marriage as binding upon each. The motion also asserted that defendant was a nonresident of the State of Illinois and that the failure to answer and defend the suit in Illinois was not the result of negligence on the part of defendant but rather a desire to choose the courts of the state of her residence as a forum. It was asserted that the inconsistent allegations in the State of Iowa and at the hearing in the proceeding in the Illinois Court constituted a fraud upon the court, and that this action has forced defendant to submit to the personal jurisdiction of the Illinois Court. Defendant then alleged that she has a good and meritorious defense to the cause of action and prayed that the court set aside the order for Declaratory Judgment and that the filing of her answer and counterclaim for separate maintenance be approved and that she be granted a trial on the merits in the cause. The motion itself was not verified. The answer and counterclaim for separate maintenance which was filed, were verified.
Plaintiff filed counteraffidavits setting up that notice was given to defendant's attorney informing him of the date of the trial and also that defendant's attorney was called the day before the actual default and when requested whether or not he would appear stated that he was not going to appear at the time of the hearing on November 20 at 10:00 a.m. and that the Illinois proceeding would be ignored. It was also asserted that the motion to vacate the order was insufficient in that it contains no verification as required by Section 72 of the Practice Act. The motion was taken under advisement on February 21, 1964, and on March 3, 1965, the court entered an order denying defendant's motion to vacate the Declaratory Judgment Order. It is from denial of such motion to vacate that defendant now appeals.
In conjunction with the appeal in this cause, Plaintiff has filed a motion to dismiss the appeal, strike the Record on Appeal filed in this court and to strike the abstract of record and the brief of defendant-appellant on the ground that the Record on Appeal was not transmitted within 60 days after notice of appeal had been filed herein and that the abstract and brief of appellant were not filed on or before 30 days after the time for filing of the Record on Appeal in accordance with Uniform Appellate Court Rules. Notice of appeal was filed on April 2, 1965. On April 15, 1965, defendant-appellant filed her motion to extend the time in which to file a Report of Proceedings in the trial court until July 6, 1965. An order was entered by the trial court allowing such motion. No Report of Proceedings, as such, was actually filed in the case since there was in fact no transcript of evidence as a result of the default proceeding. The Record on Appeal was filed on July 6, 1965, and the Statement, Brief and Argument of defendant-appellant was filed on August 5, 1965.
Under the procedure available to appellant pursuant to Uniform Illinois Appellate Court Rules (1963 Ill Rev Stats c 110, § 201.1) the Report of Proceedings at the trial normally would be required to be filed within 50 days after notice of appeal and the Record on Appeal would be filed not more than 60 days after said notice of appeal. The trial court, by proper order, extended the time for filing the Report of Proceedings until July 6, 1965, an appropriate extension of 45 days from May 22, 1965, when the Report of Proceedings would normally have been required to be filed. The Record on Appeal was filed on July 6, 1965, within the time allowed by the trial court. The Abstract and Brief of appellant were filed within 30 days after filing of the Record on Appeal. As indicated by the parties, the extension of time for filing of the Report of Proceedings granted by the trial court was entered by agreement of the parties and the circumstance that there was in fact no transcript of evidence but only an order of default does not deprive the defendant-appellant of the benefit of such extension of time available for filing of the Record on Appeal and such report as may be available as a result of proceedings in the Circuit Court. The motion to dismiss the appeal, strike the Record on Appeal and to strike the abstract and brief of defendant-appellant which were taken with the case is, therefore, denied.
As this proceeding has developed, defendant has never specifically raised the question of whether an Illinois Court has jurisdiction under the Declaratory Judgment Act to declare the status of a marriage. Nevertheless, we feel it appropriate to review this situation as it relates to the facts before us. Under the provisions of the statute (1963 Ill Rev Stats, c 110, § 57.1) no independent or specific rules for service are required in declaratory judgment actions and the courts of this State have taken the view that a declaratory judgment action is in fact sui generis and takes on the legal character of the matter which is sought to be determined by such action. As stated in Freeport Motor Cas. Co. v. Tharp, 406 Ill. 295, 299, 94 N.E.2d 139, a declaratory judgment action "is neither legal nor equitable but is sui generis . . . We think it takes the character of the nature of the relief declared, in this case a suit at law involving the rights of the parties and the liability under the terms of a policy of insurance, and the judgment rendered thereon is in the nature of, and is governed by the rules affecting the rendition and entry of, judgments at law." To the same effect is Jones v. Hodges, 2 Ill. App.2d 509, 119 N.E.2d 806. The action in the instant case, by the terms of which the Plaintiff seeks to have declared invalid a purported common-law marriage, is in the nature of an annulment action rather than a traditional divorce action since the Plaintiff seeks to show that no valid marriage existed because no lawful marriage had ever been undertaken by the parties.
[3-6] The question of jurisdiction of the defendant in annulment actions has led to some conflict among the various jurisdictions as shown in 4 American Jurisprudence 2d, Annulment of Marriage, Section 65, where the authors state "In an annulment action against a nonresident defendant, where the court has jurisdiction of the subject matter, either because of the domicile of one of the parties in the forum or because the marriage was celebrated there, the authorities are divided as to whether, apart from specific statutory authority, the court has power to entertain the action upon constructive service on the nonresident defendant." Since this matter is being considered in Illinois based upon the domicile of the plaintiff, it is the Illinois rule and interpretation rather than the Iowa rule which would govern the question of jurisdiction. In Simonds v. Allen, 33 Ill. App. 512, the plaintiff sought under the old common-law procedure to establish in Illinois that his New York marriage was void. His wife, the defendant, was a resident of New York when the suit was filed and she was served with process in New York. Defendant defaulted but the Judge refused to enter the decree and on appeal the Appellate Court determined that the New York marriage was void. The parties had been married in New York in 1877 and lived there for a number of years. The husband later found out that his wife's former husband, whom he thought to be dead, was in fact alive in Michigan. That former husband had sued his wife for divorce and served her by publication in New York and obtained a Michigan divorce. At that time under New York law, a divorce could not be obtained from a New York resident who was not served personally. The Appellate Court in determining that the second New York marriage was a nullity stated (at page 517):
"Such marriage was in fact and effect nothing but a mere form; as a contract or as creating the status of marriage between the parties, it was an absolute nullity."
In Weinberg v. Weinberg, 242 Ill. App. 414, plaintiff and defendant were first cousins and went to Kentucky to marry even though they were both Illinois residents. After their return to Chicago they never cohabited and the wife moved to South America. An action was instituted to declare the marriage void under the Illinois Marriage Evasion Act. The court found that plaintiff was entitled to relief. The court there stated (at page 416):
"The bill prayed that the marriage between complainant and defendant might be decreed to be null and void ab initio and for other relief. Defendant was served by publication, but has not appeared."
In Volume 26 of Illinois Law and Practice, Section 56 on Marriages (as is commonly stated in most treatises on the subject), the authors state:
"The power to annul a marriage requires jurisdiction of the marriage res and such jurisdiction depends on the domicile of at least one of the parties. The Circuit Court has jurisdiction of an action to annul a marriage, and the rules with respect to jurisdiction of the ...