Appeal from the Circuit Court of DuPage County; the Hon.
PHILIP F. LOCKE, Judge, presiding. Reversed and remanded.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
Mary Jane Loss filed suit for separate maintenance in DuPage County against Edward A. Loss, Jr., later joining Armstrong Paint & Varnish Works, Inc. as a defendant, who was alleged to have money owing to the husband. A special appearance and a motion to dismiss for lack of jurisdiction was filed by the husband. From an order dismissing the wife's suit and a subsequent order dismissing the Defendant Armstrong, based on the dismissal of the main suit, the wife appeals.
The plaintiff filed her complaint for separate maintenance with the court below on June 15, 1964, but defendant was not personally served with summons until an alias summons was served upon him in Arkansas on November 6, 1964. Prior to personal service being made on defendant, he himself filed suit for divorce in Crittenden County, Arkansas, and this plaintiff was personally served with summons therein on September 30, 1964.
The plaintiff filed an answer in the Arkansas proceedings, and on October 29, 1964, filed a petition for attorney's fees. Although plaintiff chose to stand mute at the subsequent trial on the merits in Arkansas, she must be held to have appeared generally in those proceedings.
On December 8, 1964, after finally being personally served with summons in the Illinois action, the defendant filed a "Special and Limited" appearance in DuPage County, and moved for a dismissal of the cause on the grounds that the plaintiff had filed a general appearance in the Arkansas case, and that plaintiff had failed "to serve the defendant."
The defendant's motion for dismissal does not state whether the issues in the Arkansas case were the same as or similar to those in the Illinois case. Also, and in spite of the representations in the defendant's motion, the record clearly shows that he was personally served with summons prior to the filing of his motion.
On April 13, 1965, a decree of divorce was entered in the Arkansas proceeding in favor of the husband. On October 11, 1965, the court below dismissed the Illinois case on the grounds that "this court does not have jurisdiction." It is from this order and other orders incidental thereto that plaintiff appeals to this court, praying, inter alia, for a determination of her "property rights" and rights to the custody and support for the minor children of the parties.
The dismissal order is silent as to whether the missing jurisdiction was over the defendant's person or the subject matter. However, the order was entered pursuant to the defendant's motion "that the above entitled cause be dismissed," and this motion was accompanied with defendant's "Special and Limited Appearance."
A special appearance is made "for the purpose of objecting to the jurisdiction of the court over the person of the defendant." (Ill Rev Stats, c 110, § 20.) However, approximately twenty days prior to filing his motion and special appearance, defendant was personally served with alias summons in Arkansas, and the propriety of this service was not seriously questioned. Further, the tenor of defendant's argument to this court and the trial court, and the wording of his motion to dismiss, suggests strongly that the main thrust of his position was the existence of the Arkansas proceeding, in which plaintiff filed a general appearance.
Accordingly, defendant's motion to dismiss would be sustained, if at all, under section 48(c) (Ill Rev Stats, c 110, § 48(c)), which provides for a dismissal motion where "there is another action pending between the same parties for the same cause." The defendant's participation below is tantamount to a general appearance, notwithstanding the nomenclature chosen for his pleadings. As noted above, the Civil Practice Act limits the use of the Special Appearance to objections to jurisdiction over the person of the defendant. While the motion represents that defendant was not personally served with summons, the uncontroverted evidence is to the contrary.
A motion to dismiss a cause because of a prior pending suit has been held to constitute a general appearance in Jones v. Jones, 40 Ill. App.2d 217, 189 N.E.2d 33 (1963) (3d Dist), where it was said (p 227):
"The second plea in abatement was directed solely to the issue of the care and custody of the children and it was asserted therein that the same issue was then pending in the prior case. This plea was equivalent to a motion for dismissal under subparagraph (c) of Section 48: `(c) That there is another action pending between the same parties for the same cause.' By this plea and motion the defendant also submitted himself to the jurisdiction of the court. People for the Use of White v. White, 263 Ill. App. 425."
For the reasons stated below, we believe the court erred in dismissing the entire cause because of the pendency of the Arkansas litigation.
By his Arkansas complaint, the defendant sought only to effect the termination of his marriage. He made no allegations or prayers regarding the custody or support of the minor children of the parties, and stated that "there is no property involved in this action." The record does not disclose that any evidence was offered on these issues. In fact, the record shows that no evidence whatsoever was offered on the issues of child custody or support. A letter dated April 14, 1965, from plaintiff's Arkansas counsel to her Illinois counsel, which letter was put into evidence by defendant, summarizes the proofs taken in Arkansas. These proofs contained nothing regarding the needs of the children, the amounts necessary to support them or the amounts which defendant could afford to furnish for such support. In the Arkansas decree the court expressly found that the three children of the parties are "out of this state and, therefore, not before this court," and that "there should ...