Appeal from the Circuit Court of Cook County; the Hon. Will
Gierach, Judge, presiding.
PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
In separate actions, each of the minor respondents, A.M., P.F., and D.H.J., was adjudged in indirect contempt of court for violation of a court order to attend school and received sentence thereon. The separate appeals were consolidated for review. The common issue is whether the trial court initially entered a valid order against the minor respondent upon which to sustain the contempt of court conviction. We reverse the judgment in each case.
The separate actions were commenced by the filing of a misdemeanor complaint solely against the minor respondent's mother, as defendant, for the offense of noncompliance with section 26-1 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 26-1) for wilfully permitting her minor child, respondent herein, to persist or continue in truancy within the school year. The summons served on each mother commanding her appearance as defendant also contained the following: "(The presence of your daughter [respondent's name] is requested)." A subpoena was issued and served upon P.F.; none was issued nor served upon the other respondents. At the time of the respective proceedings, A.M. was 15 years of age, P.F. was 13, and D.H.J. was 13.
In each case, both the defendant mother and the minor respondent were present before the court for all hearings. Following a hearing, the minor respondent was ordered to attend school with "no tardies, no cut classes, and no unexcused absences," and the mother and minor respondent were ordered to appear with a status report on a specified date. At the later hearings, the court in each case entered a written rule to show cause which was served upon the minor respondent in open court, and appointed a public defender as guardian ad litem and another to represent her. The rule to show cause was identical in each case and set forth that "the matter of Indirect Contempt of Court by said Respondent is considered by this Court" and found (1) that the respondent's parent (defendant parent) is charged with the offense of noncompliance, (2) that (minor respondent) was ordered on (date) to resume school attendance, and that since (date) the respondent had (number) unexcused absences from school. The rule ordered that (minor respondent) appear personally and say why an order should not issue finding and adjudging the said (minor respondent) to be in contempt of court.
At the subsequent hearings pursuant to the rule to show cause, the minor respondents' motions to dismiss the rule were each denied. Each minor respondent was adjudged in wilful contempt of court and hearings in aggravation and mitigation were held. A.M. was sentenced to a conditional discharge for one year upon term that she attend classes full time, enroll in summer school, be detained at the Audy Home for 30 days with mittimus stayed for the summer session, and follow all recommendations of appropriate family counseling. A motion in arrest of judgment and for new trial was denied. Thereafter A.M. was found in violation of conditional discharge, conditional discharge was revoked, and sentence of 60 days in the Audy Home was imposed for contempt of court.
P.F., following denial of a motion to dismiss the rule, was found in wilful contempt and sentenced to a reporting conditional discharge for one year and to be detained for 60 days in the Audy Home and undergo drug and family counseling. D.H.J., following denial of her motion to dismiss, was found guilty of wilful contempt and sentenced to reporting conditional discharge for one year upon terms: (1) 10 days in Audy Home, (2) attend family and drug counseling, and (3) attend school regularly.
Each of the complaints against the defendant mothers was stricken with leave to reinstate. The appeals of the minor respondents have been consolidated for review.
The minor respondents contend that the trial court lacked jurisdiction to order them to attend school because they were not made parties to the litigation by service of summons or otherwise and consequently they may not properly be held in contempt of court for violating the order.
Courts> have the inherent power to enforce their orders by way of contempt, and this power may not be restricted by the legislature. (In re G.B. (1981), 88 Ill.2d 36, 41, 430 N.E.2d 1096.) "In testing the validity of a finding of contempt a contempt a court may review and should review the validity of the underlying * * * orders." (Armentrout v. Dondanville (1979), 67 Ill. App.3d 1021, 1028, 385 N.E.2d 829.) As stated in Faris v. Faris (1966), 35 Ill.2d 305, 309, 220 N.E.2d 210:
"One is justified in refusing to comply with a court order only if such order is utterly void, but it is no defense in a contempt proceeding to show that the order was merely erroneous. [Citations.] If the court had jurisdiction of the subject matter and of the parties to the proceeding, then its order must be obeyed until such time as it is set aside by the issuing or reviewing court."
Contempt will not lie for disobeying an order which is void for want of subject matter or because the court has no power to decide the particular matter. (Armentrout v. Dondanville (1979), 67 Ill. App.3d 1021, 1028, 385 N.E.2d 829; see also In re R.R. (1982), 92 Ill.2d 423, 442 N.E.2d 252 (contempt sentences must be reversed where underlying orders are void).) Generally, a court acquires jurisdiction over a person only after a proper service of summons. (Augsburg v. Frank's Car Wash, Inc. (1982), 103 Ill. App.3d 329, 333, 431 N.E.2d 58; see also Knightsbridge Realty Partners, Ltd.-75 v. Rudolph (1982), 106 Ill. App.3d 354, 357, 435 N.E.2d 1223.) This was not done in any of the cases on appeal.
• 1 Moreover, while the subject of each respondent's truancy was a matter potentially within the subject-matter jurisdiction of the circuit court, the only matter pending before that court was the action against the mothers for wilful noncompliance with the School Code. In an analogous context, our supreme court has observed that "[c]circuit courts> have jurisdiction to enter judgment in actions of assumpsit. They have also jurisdiction to sentence men to the penitentiary for larceny. It, however, can not be inferred that by a summons in an action of assumpsit, duly served, a circuit court acquires jurisdiction of the person of the defendant to try and convict him, in his absence, for larceny of the property, for the price of which the action of assumpsit was brought. Such a proceeding would simply be void." (Munroe v. People (1882), 102 Ill. 406, 411-12.) In each case sub judice the minor respondent was not even served with process nor made a party for any purpose. The orders were entered in an entirely collateral proceeding. The jurisdiction of the circuit court, then, was not invoked for the purpose of ordering the respondents to attend school. (See Munroe v. People (1882), 102 Ill. 406; Hanifan v. Needles (1884), 108 Ill. 403, 411-12; Wackerle v. People (1897), 168 Ill. 250, 255-56, 48 N.E. 123.) Accordingly, the circuit court was without jurisdiction to enter the orders.
Plaintiff argues that the circuit court nonetheless could properly exercise personal jurisdiction over the minor respondents because of their physical presence before the court and the inclusion of their names on the truancy petitions against their mothers. To the extent that these facts constituted notice to the minor respondents of the action pending in the circuit court, they are insufficient to confer jurisdiction. (Augsburg v. Frank's Car Wash, Inc. (1982), 103 Ill. App.3d 329, 431 N.E.2d 58.) Plaintiff ...