Arndt v. Arndt

• Decision Date: 13 December 1948
• Docket Number: 43831.,Gen. Nos. 43796
• Parties: ARNDT v. ARNDT.
• Court: United States Appellate Court of Illinois

336 Ill.App. 65

82 N.E.2d 908

ARNDT

v.ARNDT.

Gen. Nos. 43796, 43831.

Appellate Court of Illinois, First District, First Division.

Dec. 13, 1948.

Appeal from Superior Court, Cook County; John J. Lupe, Judge.

Action for annulment of marriage by Clarence John Arndt against Margaret Hass Arndt. From the decree, the plaintiff appeals.

Reversed and remanded with directions.Aiken, McCurry, Bennett & Cleary and Eugene J. Graber, all of Chicago (Charles R. Aiken, of Chicago, of counsel), for appellant.

Arthur & Edward Goldblatt, of Chicago, for appellee.

NIEMEYER, Justice.

Our judgments, in the consolidated appeals of plaintiff from a decree dismissing for want of equity his complaint for the annulment of his marriage to defendant and from a subsequent order directing him to pay $150 for attorney's fees and expense money in defending the first appeal (331 Ill.App. 85, 72 N.E.2d 718), were reversed by the Supreme court (339 Ill. 490,78 N.E.2d 272) with directions to consider the merits of the first appeal and to set aside the order allowing appellee suit money. Pursuant to these directions we file this opinion as to the merits of the appeal from the decree, and hereby reverse the order allowing the appellee suit money.

We state only the facts believed necessary to a consideration of the matter now before us. The plaintiff charged that the marriage ceremony of January 18, 1944, had been induced by the fraudulent representation of defendant that the plaintiff was the father of the child with which defendant was pregnant. Defendant answering, admitted the representation charged in the complaint, denied that it was false and affirmed that the plaintiff was the father of her child. The parties agree that they had illicit relations before the marriage, and that they did not live and cohabit together after the ceremony. After trial the court entered a decree reciting that he had heard the witnesses presented in support of the respective positions of the parties and finding that the marriage was a good and legal marriage and that plaintiff was the father of defendant's child, and dismissing the complaint for want of equity. Plaintiff filed an amended petition asking that the decree be vacated and set aside in order that alleged newly discovered evidence might be introduced or, in the alternative, that a new decree be entered expressly refraining from adjudicating any question as to the paternity of defendant's child. After hearing on this petition the court vacated the decree, and, without hearing any further testimony so far as the record shows, entered a second decree identical with the first, except that in lieu of the finding that plaintiff was the father of defendant's child there was inserted a paragraph reciting that the plaintiff contends that the child born February 27, 1944 is not his child, and that defendant contends that said child is the child of the parties to the suit, ‘but this court does not make any finding with respect to the paternity of said child.’

Plaintiff's position on appeal is, as stated in his petition to vacate the decree, and not denied by defendant, ‘that at the first hearing of evidence in this cause the chancellor ruled that it would make no difference whether plaintiff was or was not the father of the child born to the defendant in as much as under the law of Illinois plaintiff was not entitled to an annulment even if he established that he were in fact not the father of defendant's child’; that ‘the decree of dismissal contains language showing that the chancellor expressly declined to pass upon the paternity of the child,’ and that ‘it is this refusal by the chancellor to pass upon the issue of paternity which plaintiff claims is reversible error.’ The fact that this refusal was pursuant to plaintiff's alternative prayer for relief in his amended petition, is no longer in the case, the Supreme court having overruled our position on that question.

The first question is: Does the record before us preserve for review the court's alleged failure or refusal to determine the paternity of the child? In determining whether there was error in failing or refusing to pass on that question, we are not concerned with the weight of the evidence as to the paternity of the child. In Goodrich v. Sprague, 376 Ill. 80, 86, 32 N.E.2d 897, 900, where the court failed to pass upon a motion for a new trial filed with a motion for judgment notwithstanding the verdict, the court said: ‘* * * matters not ruled upon by the inferior court are not subject to the consideration of the Appellate Court unless the lower court's failure to rule is made the subject of an assignment of error, in which case the propriety of such failure is the question presented to the Appellate Court and not the merits of the matter upon which the trial court refuses to act

.’ (Italics ours.) It was there held that the Appellate Court was justified in reversing the judgment entered notwithstanding the verdict and that it erred in passing upon and denying the alternative motion for a new trial and entering judgment; that it should have remanded the cause to the trial court to pass on the alternative motion for a new trial. Other cases to the same effect are Armour v. Pennsylvania R. Co., 353 Ill. 575, 187 N.E. 532;Ottawa, Oswego & Fox River Valley R. Co. v. McMath, 91 Ill. 104;Read v. Cummings, 324 Ill.App. 607, 59 N.E.2d 325, and Zwierzycki v. Metropolitan Life Ins. Co., 316 Ill.App. 345, 45 N.E.2d 76.

The weight of the evidence not being before us, a report of proceedings containing the evidence produced on the trial is not necessary. It is only necessary that the failure of the court to pass upon the paternity of the child be shown in the record. Rulings of a court at a trial are properly shown by a report of proceedings in the form of a complete stenographer's report or a condensed statement, or, in lieu thereof, a written stipulation of the facts material to the controversy, either of which must be certified by the trial court to be correct. Supreme Ct.Rule 36(1)(b)(c)(d), Ill.Rev.Stat.1947, c. 110, § 259.36(1)(b, c, d). These rulings cannot be shown, as plaintiff insists, by undenied averments of the parties, such as the statement quoted above from plaintiff's petition to vacate the decree. However, under section 74(2) of the Civil Practice Act, Ill.Rev.Stat.1947, c. 110, § 198(2), abolishing all distinction between the common law record, bill of exceptions and a certificate of evidence for the purpose of determining what is properly before the reviewing court, the matters ruled on by the trial court may be shown in the common law record. Warner v. Burke, 302 Ill.App. 85, 23 N.E.2d 393. It appears from the complaint and answer, and from the decree, that the paternity of the child was an issue in the case. It further appears from the decree that the court heard the witnesses presented in support of the respective positions of the parties and that the court ‘does not make any finding with respect to the paternity of said child.’ It therefore sufficiently appears from the common-law record that the paternity of the child was an issue in the cause; that the court heard testimony on the issue and did not ultimately make any finding thereon. This preserves plaintiff's point for review.

The complaint charges that plaintiff, ‘believing defendant and relying upon her representations that he was the father of her unborn child,’ married defendant. As it is silent as to any investigation by plaintiff as to the truth or falsity of her representations, we assume on this appeal that no investigation was made.

The second question presented is, whether false representations as to the paternity of the child which defendant is carrying are grounds for annulment of marriage at the suit of the plaintiff, who had had illicit relations with defendant and accepted and believed her statement without investigation as to its truth or falsity. There are only four Illinois cases in which similar representations, made under like circumstances, were in issue before a reviewing court or discussed by it: Lyon v. Lyon, 1907, 230 Ill. 366, 82 N.E. 850, 13 L.R.A.,N.S., 996, 12 Ann.Cas. 25;Hull v. Hull, 1915, 191 Ill.App. 307;Helfrick v. Helfrick, 1927, 246 Ill.App. 294; and Short v. Short, 1932, 265 Ill.App. 133. In the Lyon case, annulment of the marriage was sought on the ground of false representations that defendant had been entirely cured of her epilepsy and had had no attacks thereof for more than eight years. In discussing the case of Di Lorenzo v. Di Lorenzo, 174 N.Y. 467, 67 N.E. 63,63 L.R.A. 92, 95 Am.St.Rep. 609, the court said that the representation relied upon by the plaintiff in that case for annulment of his marriage [230 Ill. 366, 82 N.E. 852] ‘is similar in kind to that of a pregnant woman, who induces a man with whom she has had illicit intercourse to marry her by the false representation that he is the father of her child. But such representation, under such circumstances, does not constitute fraud for which the marriage will be annulled * * *.’ In the Hull case the wife sought annulment of the marriage because of false representations of her husband before marriage as to his not having had intercourse with other women. In denying the relief sought, the court discussed the reasons given by courts holding marriages voidable when a woman conceals from her intended husband, with whom she has not had illcit relations, her pregnancy by another man. These statements relating to the question before us are plainly obiter dicta. People v. Callopy, 358 Ill. 11, 19, 192 N.E. 634;McAdams v. McAdams, 267 Ill.App. 124. In Helfrick v. Helfrick, 246 Ill.App. 294, the issue was squarely presented and it was held that such misrepresentation was not ground for annulment. Five years later the same court in Short v. Short, 265 Ill.App. 133, ignored its former opinion and held that a cross-bill filed in a separate maintenance action should have been...