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People Ex Rel. Hawthorne v. Hamilton

JANUARY 22, 1973.

THE PEOPLE EX REL. ROSE HAWTHORNE, PLAINTIFF-APPELLEE,

v.

TERRENCE HAMILTON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Rock Island County; the Hon. ROBERT J. HORBERG, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Plaintiff, Rose Hawthorne, filed a complaint under the Paternity Act in the Circuit Court of Rock Island County alleging that she gave birth to a female child on June 3, 1970, and that the child was born out of wedlock. The complaint prayed that the court find the Defendant, Terrence Hamilton, to be the father of the child. The defendant filed an answer denying paternity and moved the court to enter an order to require the parties to submit to a blood test. Pursuant to this motion, Terrence Hamilton, the defendant, Rose Hawthorne, the plaintiff, and the child, appeared together at the Martin Clinical Laboratory, Moline, Illinois, on April 20, 1971, where blood samples were taken. The results of these tests indicated that the defendant, Terrence Hamilton, could be excluded as the father of the child.

On May 21, 1971, after the results of the blood tests were made known to the plaintiff, she filed a petition asking the court to order a second blood test. This petition was heard before Judge Carlstrom on June 2, 1971, and was denied.

On August 16, 1971, the defendant filed a motion to dismiss, setting forth the results of the blood test which excluded him as the father of the child and giving notice that the experts who performed the tests would appear and submit their findings before the court. After defendant filed his Motion to Dismiss, the plaintiff, Rose Hawthorne, renewed her motion for an additional blood test.

On August 24, 1971, Judge Horberg heard the defendant's motion to dismiss, and the plaintiff's motion for an additional blood test. Testifying on behalf of the defendant were employees of the Martin Clinical Laboratory, who took the blood samples, and Dr. Robert Scheir, a microbiologist of Biochemical Procedures, North Hollywood, California. The defendant's Motion to Dismiss was denied and the plaintiff's motion for an additional blood test was granted.

On April 26, 1972, an Order to Show Cause was issued against the defendant, directing him to appear and show cause why he should not be held in contempt of court for failing to comply with the court's order. Defendant was adjudged in contempt of court and sentenced to fifteen days in the county jail. The contempt order was stayed pending appeal.

In seeking to reverse the contempt judgment defendant argues one; a person is not guilty of contempt of court for disobedience of an order which the court had no authority to make, two; defendant in a paternity proceeding may not be compelled to submit to a blood test and three; the denial of a motion or petition for an incidental or interlocutory order in the progress of a cause will generally operate as a bar to its renewal in the same proceedings on the same grounds.

• 1 The plaintiff has devoted the major portion of her brief to the proposition that this appeal should be dismissed because it is a purported appeal from an interlocutory order not permitted by law. Without disagreeing with the proposition that interlocutory orders are not appealable the cases cited by plaintiff such as Great Northern Refining Co. v. Peterson, 214 Ill. App. 492, and In re Querciagrossa's Estate (1965), 65 Ill. App.2d 280, 213 N.E.2d 13, are inapplicable because they do not involve judgments of contempt.

• 2 Citing such cases as Monier v. Chamberlain, 35 Ill.2d 351, 221 N.E.2d 410, and Stimpert v. Abdnour, 24 Ill.2d 26, 179 N.E.2d 602, the Court in People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, 226 N.E. 6, observed, "* * * the June 29 order is cast in terms of a contempt proceeding, and * * * ordinarily such an adjudication is a final and appealable order, and an appropriate method of testing pretrial discovery orders." In the foregoing case the court concluded that the sanction of dismissing defendant's answer and declaring it to be in default on the issue of liability did not constitute contempt and until damages were assessed the judgment of the court was not appealable. However where an unappealable interlocutory order results in a judgment of contempt including fine or imprisonment such a judgment is a final and appealable judgment and presents to this court for review the propriety of the order of the court claimed to have been violated.

• 3 This brings us to the principal assignment of error namely the defendant's claim that the statute under which the trial court acted does not authorize a court to compel the defendant in a paternity action to submit to a blood test. According to defendant if the court lacks authority to compel him to submit to a blood test initially it likewise lacks such authority to compel a second blood test where the defendant has voluntarily requested and submitted to the initial test.

Ill. Rev. Stat. 1971, ch. 106 3/4, pars. 1 thru 7 provide for the procedure for blood tests in paternity cases. Paragraph 1 provides:

"1. Parties to submit to blood tests — Use of evidence.) 1. In a civil action, in which paternity is a relevant fact, the court, upon its own initiative, or upon motion of any party to the action, may order the mother, child and alleged father to submit to blood tests to determine whether or not the defendant shall be excluded as being the father of the child. The results of the tests shall be receivable in evidence only if definite exclusion is established. If the defendant refuses to submit to such tests, such fact shall not be disclosed upon the trial."

Ill. Rev. Stat. 1971, ch. 106 3/4, par. 55 provides in part:

"* * * The accused shall have the right to submit to a blood test. If the accused so submits himself, the court shall order such test administered. If the blood test shows that the accused is not the father of the child as alleged in the complaint, ...


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