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Alsen v. Stoner

OCTOBER 28, 1969.

ANITA CAROLINE ALSEN, PLAINTIFF-APPELLANT,

v.

DAVID STONER, DEFENDANT, HARRY B. STONER, THE VALLEY NATIONAL BANK OF AURORA, AND THE FIRST NATIONAL BANK OF BATAVIA, RESPONDENTS-APPELLEES.



Appeal from the Circuit Court of Kane County, Sixteenth Judicial Circuit; the Hon. CHARLES G. SEIDEL, Judge, presiding. Affirmed.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.

Certificate of importance and rehearing denied December 5, 1969.

Anita Caroline Alsen, plaintiff, appeals from an order quashing citations issued under the provisions of Ill Rev Stats 1967, c 110, § 73, and c 110A, § 277. The supplementary proceedings were brought to enforce a purported judgment under the Paternity Act. (Ill Rev Stats 1967, c 106 3/4, §§ 51-66.) Harry B. Stoner, The Valley National Bank of Aurora, and The First National Bank of Batavia were made respondents to the citation petition as holders of assets purporting to be those of David Stoner, the defendant in the paternity suit. The court also held the underlying judgment of paternity void for lack of jurisdiction over David Stoner.

The basic inquiry presented by the proceedings below is whether a paternity action may be initiated by service of a civil summons as well as by warrant; and whether this issue can be reached in a supplementary action to collect the judgment from assets held by third parties.

Plaintiff filed her complaint on October 17th, 1967. A warrant was issued in accordance with the prayer of the complaint, but was returned unexecuted with a recitation that the defendant was not found in the state. On November 3rd, without order of court, the clerk issued a form of summons used in civil cases under the Civil Practice Act. This summons was also returned with a recitation that the defendant was not found.

On November 14th, 1967, another summons was issued which was on the printed form of the usual civil summons, amended to recite that the summons charged an offense under the Paternity Act and requiring the defendant to appear in court at a fixed hour, thirty days after the service of the summons. In addition to the usual clerk's signature, there was attached an order of court that the defendant be ordered to appear as "above set forth," signed by the judge. The return of service recites service upon a family member "at the usual place of abode of said defendant," with summons mailed to the same place.

On January 23rd, 1968, an order of default was entered on the defendant upon his failure to appear. A hearing was then held and a paternity judgment order was entered finding the defendant to be the father of plaintiff's child as alleged in her complaint, and awarding her the sum of $150 per week for support, and confinement expenses in the amount of $970.85.

The arrearages were reduced to judgment on July 1st, 1968. Thereafter, the court issued a citation to the defendant. The citation was not served on defendant personally but the return recited that it was left with a member of his family at a usual place of abode and a copy mailed there. On July 1st, the court entered an order of default against the defendant for his failure to respond to the citation and entered judgment against him in the amount of $3,525.85. Thereafter, on September 27th, 1968, supplementary proceedings to discover assets were commenced against the three respondents who filed special appearances and motions to quash.

Plaintiff concedes that section 55 of the Paternity Act, supra, provides that upon the filing of a verified complaint the court shall "issue a warrant for the apprehension of the defendant" which may be served in any county of the state. It is also acknowledged that section 64 of the Paternity Act provides that the provisions of the Civil Practice Act shall apply to all proceedings under the Paternity Act, "except as otherwise specifically provided in this Act."

However, plaintiff argues that there is an alternative procedure established under the provisions of Ill Rev Stats 1967, c 38, § 107-11:

"When authorized to issue a warrant of arrest a court may in lieu thereof issue a summons."

Respondents maintain that the provisions of the Criminal Code have no application to the prosecution under the Paternity Act which is civil in nature.

The trial judge reasoned that proceedings under the Paternity Act are of a special statutory origin and are independent of the Criminal Code, and are independent of the Civil Practice Act to the extent that specific provisions are found in the Paternity Act. Therefore, he concluded that plaintiff could not get service under the Civil Practice Act because the Paternity Act provided the method for bringing in the defendant. We agree. Remedies which are conferred by statute in derogation of the common law may be enforced only in the manner prescribed in that statute. Kosicki v. S.A. Healy Co., 380 Ill. 298, 302, 44 N.E.2d 27 (1942); Toms v. Lohrentz, 37 Ill. App.2d 414, 417-18, 185 N.E.2d 708 (1962); People ex rel. Cantazaro v. Centrone, 48 Ill. App.2d 484, 485-6, 199 N.E.2d 226 (1964).

Provisions regarding service of process, arrest, preliminary hearing, binding over for trial and the power to require bond, remain substantially the same under the present Paternity Act as they were under the previous Bastardy Act. See 47 IBJ 826. Cases construing procedures under the former act are applicable to the present. ...


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