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Sidwell v. Sidwell

SEPTEMBER 26, 1966.

DORIS SIDWELL, PLAINTIFF-APPELLANT,

v.

ROY SIDWELL, DEFENDANT-APPELLEE. DORIS SIDWELL, PETITIONER-APPELLANT,

v.

ROY SIDWELL, RESPONDENT-APPELLEE.



General No. 10,668 — appeal from the Circuit Court of Cumberland County; the Hon. WILLIAM J. SUNDERMAN, Judge, presiding. Judgment denying relief to either party in divorce action affirmed in part, reversed in part and remanded with directions. General No. 10,685 — appeal from the Circuit Court of Clark County; the Hon. ZOLLIE O. ARBOGAST, Jr., Judge, presiding. Judgment adverse to plaintiff affirmed.

CRAVEN, J.

These two appeals were consolidated for opinion by order of this court. Both cases are by the same parties, Roy Sidwell and Doris Sidwell, who are husband and wife. The first appeal, No. 10,668, involves a divorce action brought by Doris Sidwell in Cumberland County, the county of her residence. The second appeal, No. 10,685, concerns a separate maintenance action subsequently brought by Doris Sidwell in Clark County, Roy Sidwell's then county of residence.

The Cumberland County proceeding is an appeal by the plaintiff and a cross-appeal by the defendant from a decree entered by the circuit court denying relief to either party in the divorce action. The plaintiff, Doris Sidwell, first brought suit for divorce alleging extreme and repeated cruelty and adultery. The defendant, Roy Sidwell, counterclaimed for divorce alleging adultery. Thereafter the plaintiff attempted to amend her complaint by adding a count for separate maintenance. The court denied the plaintiff's motion to amend. Both parties now ask that the court's decree denying relief be reversed and that the court remand with directions to enter a decree of divorce in their favor.

Subsequent to the entry of the above decree, the plaintiff, Doris Sidwell, filed an action for separate maintenance in Clark County. The circuit court of Clark County granted the defendant's motion to dismiss under section 48(1)(c) of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 48(1) (c)) because another action "between the same parties for the same cause" was on appeal. The plaintiff appeals this order.

The evidence in the Cumberland County divorce action constituted twenty-two witnesses' testimony concerning the conflicting allegations of the two parties. After the hearing was concluded, the trial court, in a letter to opposing counsel, informed them:

"I have carefully considered the above matter which was completed last week and I cannot escape the conclusion that the plaintiff presented a preponderance of the evidence and it was sufficient to award her a divorce on the grounds of adultery. I will, therefore, enter a decree to this effect."

Thereafter the defendant filed a motion for rehearing alleging newly discovered evidence. The motion was granted. At the second hearing the defendant produced the following evidence:

1. An anonymous letter written to Larry Sidwell, the son of the parties, suggesting that one of the witnesses could have amnesia or take an out-of-State vacation in payment of a fee of $400.

2. A statement given by the plaintiff's witness, Edgar Markwell, to the State's Attorney of Cumberland County on October 9, 1964, admitting authorship of the above letter.

3. The testimony of Mark Hunt concerning his conversation with Edgar Markwell on the same date wherein Markwell confirmed that he had lied under oath.

4. A written statement of Edgar Markwell on the same date wherein he admitted his testimony was false.

5. A statement made by plaintiff's witness, Christine Chapman, on October 17, 1964, stating that she based her identification of Roy Sidwell entering the apartment of Ernestine Perry upon "town gossip."

6. A criminal charge of solicitation to commit subornation of perjury to which Edgar Markwell pleaded ...


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