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People Ex Rel. Johnson v. Payne

OPINION FILED SEPTEMBER 13, 1984.

THE PEOPLE EX REL. DORISTEEN JOHNSON, PLAINTIFF-APPELLEE,

v.

JOHN PAYNE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. William A. Kelly, Judge, presiding.

JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Defendant John Payne appeals from an order of the circuit court of Cook County denying his section 72 petition (Ill. Rev. Stat. 1981, ch. 110, par. 72), now section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401), in which he sought to vacate a judgment for paternity and support entered against him almost three years earlier. Defendant also seeks to appeal directly from that initial judgment as well as from the denial of an amended section 72 petition and a petition to vacate the original judgment, both latter petitions having been filed after the denial of the section 72 petition. (We will use the section 72 terminology because it was applicable at the time in question.)

We dismiss defendant's attempted direct appeal from the initial judgment for paternity and support, and we affirm the judgment of the trial court denying defendant's other petitions.

On October 10, 1974, relatrix Doristeen Johnson initiated a paternity action against the defendant, alleging in a verified complaint that he was the father of a minor child born to her out of wedlock on November 30, 1973. Defendant was initially represented by the public defender. On September 1, 1976 (after the matter had twice been postponed on defendant's motions on March 10, 1976, and April 14, 1976), the public defender moved to withdraw as defendant's counsel. The matter received 11 additional continuances (all either by agreement, on the State's own motion, or on the court's order) until June 25, 1979. On that date, with the defendant present in court, the public defender renewed his motion to withdraw and informed the court that defendant had retained private counsel. The court granted the motion but passed the matter because defendant's counsel had not arrived. Later that day the following colloquy took place:

"THE CLERK: John Payne.

MR. O'GARA: The State, at this time, your Honor, is making a motion for default. The case has been on call since —

THE DEFENDANT: He's suppose to be on his way.

THE COURT: This court starts at 11:00, sir, and he should be here by then. See this file? This is you.

MR. O'GARA: Judge, this case has been on call since October of '75. The parties have had their blood test and every kind of interrogatories. The State would ask for a finding, in default, of paternity.

Are you working, Mr. Payne?

THE DEFENDANT: Yes, I am.

MR. O'GARA: How much do you take home per week?

THE DEFENDANT: About a hundred and thirty ...


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