APPEAL from the Circuit Court of Williamson County; the Hon.
STEWART CLUSTER, Judge, presiding.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 2, 1974.
This is an appeal by the defendant-appellant, Betty S. Reagan, from an order of the Circuit Court of Williamson County dismissing her motion to vacate a decree for divorce. In appellant's motion to vacate the decree, she alleged that the entry of appearance was a nullity because it was dated prior to the time of filing the complaint and that her signature on the entry of appearance was obtained by deceit and fraud.
The appellant's motion raises three questions:
1) Can the court vacate the decree after the expiration of 30 days?
2) Did her entry of appearance confer jurisdiction on the court in view of the time which elapsed between the date of its signing and the date of filing?
3) Was her signature on the entry of appearance fraudulently obtained?
Appellant and appellee, Thomas F. Reagan, were married in 1964 and they lived in their home until September 13, 1973. On September 1, 1972, appellant signed an entry of appearance in which she expressly waived the necessity of summons and consented that an immediate default might be taken and entered against her. On September 13, 1973, appellant was committed to the Anna State Hospital for chronic alcoholism, and, a week later, the complaint for divorce and her entry of appearance were filed. On October 5, 1973, while appellant was still hospitalized, a decree of divorce was entered, citing extreme and repeated mental cruelty as the grounds. Appellee notified appellant on a visit to the hospital before her release on November 1, 1973, that a decree of divorce had been granted.
On January 17, 1974, appellant filed a motion to vacate the decree and to have set aside certain transfers of property made pursuant to a provision in the entry of appearance, which provision was incorporated in the divorce decree. All of this property, eight vacant lots and the home site, was conveyed to appellee's brother by deed signed by appellant and appellee on September 1, 1972; this was the date that appellant signed the entry of appearance. This deed and another deed dated October 5, 1973, the date of the divorce, wherein appellee's brother and appellee's brother's wife reconveyed the property to appellee were filed in the recorder's office on October 18, 1973. On January 30, 1974, appellant's motion to vacate was denied.
• 1 In Bowman v. Bowman (1872), 64 Ill. 75, 81, the court said: "When a bill has been taken pro confesso, and a decree entered by default, it rests in the sound discretion of the court to relieve the party of the consequences of the default * * *. This court has the right to review the exercise of such discretion in chancery proceedings." In Bratkovich v. Bratkovich (1962), 34 Ill. App.2d 122, 126-127, 180 N.E.2d 716, the court stated: "It is a fundamental principle of law that the question of the jurisdiction of a court as to subject matter or as to parties can be raised at any time either directly or collaterally."
• 2, 3 The court stated in the case of Barnard v. Michael (1945), 392 Ill. 130, 135: "A judgment, order or decree entered by a court which lacks jurisdiction * * * is void, and may be attacked at any time or in any court, either directly or collaterally. An application to vacate a judgment or decree, made to the court that rendered it within thirty days after its entry, is a direct attack upon the judgment or decree, but if made after the expiration of thirty days it is a collateral attack." In Maher v. Title Guarantee & Trust Co. (1901), 95 Ill. App. 365, 387, it was stated: "* * * while courts of equity have the power to vacate a fraudulent divorce, though in so doing the rights of innocent third parties will be sacrificed, they will proceed with great caution, especially where there has been a second marriage on the faith of the fraudulent decree * * *."
• 4 In the instant case the record does not show that either party has remarried and there is no evidence that third parties would be seriously injured if appellant's motion to vacate the decree were granted. We have no hesitancy in holding that appellant is not barred in the filing of her motion by the 30-day provision in the Civil Practice Act.
Was the entry of appearance, which in this case was executed more than 1 year prior to the filing of the complaint for divorce, valid? Appellee argues that it is, citing Vayette v. Myers (1922), 303 Ill. 562, 136 N.E. 467; Hannah v. Hannah (1968), 94 Ill. App.2d 372, 236 N.E.2d 783; and 24 Am.Jur.2d Divorce & Separation § 293 (1966). We do not find any of this authority controlling in the instant case. In Vayette the bill for divorce was filed on January 6, 1920, by the husband, and on the same day the wife filed an entry of appearance prepared and signed the day before. Also, she received a copy of the bill the day before it was filed and endorsed on it "`I have received a true copy of this bill this fifth day of January, 1920.'" (303 Ill. at 565.) Furthermore, her waiver said: "[A]t the January term, A.D. 1920, of said Circuit Court of Livingston County * * *" (303 Ill. at 563), so in any case her waiver was not binding beyond the January term of court. Also, the court took the trouble to note that "[t]he filing of the bill and the entry of appearance were at one and the same time." 303 Ill. at 565.
It should be noted that in cases cited by the court in Vayette as supportive of the rule that a presumption exists in favor of the regularity of an entry of appearance, the entry was either signed upon the original bill (Epps v. Buckmaster (1898), 104 Ga. 698, 30 S.E. 959); endorsed on the summons (Harrison v. Morton (1898), 87 Md. 671, 40 A. 897; Snell v. Stanley (1872), 63 Ill. 391); or endorsed on the bill (Bowman v. Bowman (1872), 64 Ill. 75). The court in Vayette also remarked that "* * * it is universally the rule that an agreement not to ...