Carnes v. Carnes, Gen. No. 44108.

• Citation: 77 N.E.2d 341,333 Ill.App. 316
• Decision Date: 04 February 1948
• Docket Number: Gen. No. 44108.
• Parties: CARNES v. CARNES.
• Court: United States Appellate Court of Illinois

333 Ill.App. 316
77 N.E.2d 341

CARNES
v.
CARNES.

Gen. No. 44108.

Appellate Court of Illinois, First District, Third Division.

Feb. 4, 1948.

Appeal from Superior Court, Cook County; Edwin A. Robson, Judge.

Separate maintenance action by Virginia Carnes against Edward C. Carnes, wherein defendant filed a cross-action for divorce. A judgment for separate maintenance was entered in favor of the plaintiff, and defendant's cross-action for divorce was dismissed for want of equity. From a judgment for plaintiff for alimony that had accrued under the separate maintenance decree, defendant appeals.

Judgment affirmed.

[77 N.E.2d 341]

John D. Vosnos, of Chicago, for appellant.

Stephen J. Sullivan, of Chicago, for appellee.

KILEY, Justice.

This is a separate maintenance action. The appeal is from a judgment for plaintiff for $5,410 upon a decretal provision for alimony. Defendant has appealed.

June 12, 1939 plaintiff filed her amended complaint for separate maintenance against defendant in the Superior Court of Cook County. She alleged among other things their marriage February 13, 1933; the birth of twins in November 1937; defendant's desertion in April 1938; defendant's commencement of a divorce action in Sangamon County, Illinois, in November 1937 before the children were born; defendant's false allegation therein that he was a resident of Sangamon County; the pendency of that suit although defendant was restrained from further action therein; and defendant's default in payment of support money and attorney's fees under a temporary order of June 17, 1938.

February 1, 1940 a ‘Judgment for Separate Maintenance’ was entered in favor of plaintiff. Defendant's cross-action for divorce was dismissed for want of equity. Findings were made that both parties were residents of Cook County and had been for 5 years before the amended complaint was filed; that defendant had filed for divorce in case No. 76275 in Sangamon County; that further action in that suit had been restrained by a previous order ‘in this cause’; and that his allegation of residence in Sangamon County was false and an imposition upon the Sangamon County court. It further found that plaintiff had proved her case and that defendant

[77 N.E.2d 342]

had introduced no evidence of the cruelty he had alleged and failed to maintain his charges of desertion and adultery. The decree awarded plaintiff custody of the children; $65 as permanent monthly alimony and $100 attorney's fees; and found an arrearage of $50 attorney's fees and $680 alimony under a previous order.

November 3, 1941 plaintiff, pursuant to leave of court, filed her amended complaint for divorce, charging desertion by defendant beginning April 1938 and praying for a money judgment for an arrearage of approximately $1,400. Defendant was not personally served under this amended complaint. In her affidavit of non-residence plaintiff stated that defendant's last known mailing address was 215 South Walnut Street, Springfield, Illinois. The certificate of the Clerk of the Superior Court shows that notice of the divorce proceeding was sent to the defendant at the Springfield, Illinois address. An order of default was entered against defendant December 19, 1941.

The next pleading in the record before us is the petition for a Money Judgment filed January 15, 1946. It recites the alimony provision of the separate maintenance decree of January 1940, the judgment thereon of November 1941 for $1,382.50 and the additional arrearage of $3,347.50. The prayer is for a Money Judgment for $4,730. Defendant presumably answered, for the record contains plaintiff's motion to strike the answer. It would appear that defendant in answering claimed that plaintiff's amended complaint for divorce ‘automatically’ vacated the separate maintenance decree, and that in December 1940 a decree for divorce was granted him in Sangamon County Circuit Court. Plaintiff in her motion stated that the first claim was a conclusion and an insufficient defense and the latter insufficient because the record of the Sangamon County Court was not made a part of the answer. June 27, 1946, defendant filed an amended answer denying residence in Cook County and averring residence in Sangamon County, and referring to plaintiff's affidavit giving his address in Springfield. He repeated his averment that plaintiff's divorce action...