Schuler v. Schuler.

• Decision Date: 20 April 1904
• Citation: 209 Ill. 522,71 N.E. 16
• Parties: SCHULER v. SCHULER.
• Court: Illinois Supreme Court

209 Ill. 522

71 N.E. 16

SCHULER

v.SCHULER. ^*

Supreme Court of Illinois.

April 20, 1904.

Error to Appellate Court, Second District.

Action on foreign judgment for support money and costs by Anna M. Schuler against David A. Schuler. From a judgment of the Appellate Court (104 Ill. App. 463) reversing a judgment of the circuit court for plaintiff, plaintiff brings error. Reversed.

W. R. Moore, for plaintiff in error.

William A. Meese and M. J. McEniry, for defendant in error.

BOGGS, J.

This was an action in debt, brought by the plaintiff in error against the defendant in error, in the circuit court of Rock Island county. The declaration contained two counts, in substance the same, the charge in each count being that the plaintiff, at the May term, in the year 1893, of the court of oyer and terminer and general jail delivery and quarter sessions of the peace for the county of Philadelphia, in the state of Pennsylvania, to wit, on the 14th day of June in the same year, by the consideration and judgment of the same court, recovered against defendant, in a certain action of desertion, the sum of $5 per week for her support as the wife of said defendant, and also the cost of the plaintiff in behalf whereof the defendant was convicted, as by the record thereof remaining in the same court more fully appears, which said judgment still remains in full force, and the plaintiff hath not obtained any satisfaction of or upon said judgment for the said several sums of money so adjudged as aforesaid, or any part thereof. A demurrer filed to the declaration was overruled. Thereupon the defendant in error filed two pleas. The first plea averred that the several supposed causes of action in the said declaration mentioned did not, nor did any or either of them, accrue to the plaintiff at any time within five years next before the commencement of this suit, and invoked the bar of the statute of limitations. The second plea alleged that in 1892 a decree was entered in the court of common pleas in the county of Clark, in the state of Ohio, dissolving, annulling, and setting aside the marriage tie which theretofore existed between the plaintiff and the defendant, and averred that at the time of the rendition of the alleged judgment in the state of Pennsylvania the marriage tie had been dissolved by the force and effect of the decree of divorce in the state of Ohio. This plea did not aver that the court of common pleas in Clark county, in the state of Ohio, had in any way obtained jurisdiction over the person of the wife, and for that reason a demurrer which was interposed to the plea was properly sustained. Afterwards the defendant in error filed a third plea, which averred that ‘there is not any record of the supposed recovery in the said declaration mentioned remaining in the said court of the quarter sessions, etc., in the city and county of Philadelphia, in the state of Pennsylvania, in manner and form as the plaintiff has above, in her said declaration, alleged,’ being a plea of nul tiel record. form, viz. ‘that the said commissioners did cause to be sent by mail to the owners whose premises have been assessed by said commissioners, and whose names and places of residence were known to them, or either of them, the notice required by law to be sent by mail to the owners of premises assessed,’ (giving a substantial copy of the notice thus sent by mail.) With this evidence before it, the court rendered a judgment of confirmation against the appellant by default.

Sufficient proof was made of the posting and publication of notice by the commissioners, and theonly question is whether in this collateral proceeding the appellant will be permitted to impeach the judgment of confirmation by showing that in point of fact no notice was sent by mail to him. The evidence before the court at the time that judgment was rendered was sufficient, prima facie, to show compliance by the statute in relation the provisions of the statute in relation to notice, and to establish the jurisdiction of the court to render a judgment of confirmation; and we are of the opinion that, after having acted upon such evidence, its judgment is not open to collateral...