Davis v. Davis
| Decision Date | 26 February 1971 |
| Docket Number | Gen. No. 54345 |
| Parties | Beatrice DAVIS, Plaintiff-Appellee, v. William DAVIS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Tate & Posey, Chicago, for defendant-appellant; Emory Andrew Tate, Harry G. Posey, Chicago, of counsel.
Jacob J Gordon, Chicago, for plaintiff-appellee.
This is an appeal from a decree of divorce in which the defendant appeals.
Plaintiff, Beatric Davis, filed suit for divorce charging extreme and repeated cruelty and asking a property settlement, child support and alimony. Defendant, William Davis, through his attorneys, answered, the answer consisting of denials. A temporary support order was entered and the case was set for trial. On the day of trial, defendant's attorneys asked and were given leave to withdraw as a reult of what defendant testified was 'a discussion of attorneys' fees.' The case then proceeded to trial with the defendant appearing Pro se. No objection was made at the time by the defendant and the court assisted him in the presentation of his evidence which was solely his own testimony. His defense was that on one occasion when the plaintiff claimed the defendant cruelly struck her that the plaintiff struck the defendant back. The defendant further claimed ill health which did not impair his earning ability but threatened later difficulty. The court required a weekly payment of $40.000 child support and alimony which continued in effect the agreed temporary support order and decreed the equity of approximately $2,000.00 in the marital home to the wife.
The defendant then hired other attorneys who filed a verified pleading entitled, 'Petition to Vacate Default, for Leave to Appear by Present Counsel and to File Answer.' This document was filed June 25, 1969, and on the same day there was filed the decree of divorce reflecting the ruling of the court at the hearing on June 13, 1969.
On July 1, 1969, the defendant appealed to this court from the 'final judgment entered in the above entitled cause' which defendant's notice of appeal says is a 'decree entered in favor of plaintiff, and denying defendant's motion to vacate order of default.'
The defendant in his Points and Authorities and Argument does not refer to, claim or argue any error on the part of the trial court in its rulings or in the relief granted. The court had wide discretion to refuse to vacate the decree but did not abuse that discretion since the evidence supports the decree as entered. Defendant's contention is based upon what he maintains is an unconstitutional denial of due process of law by virtue of the failure of the court on its own motion to have continued the cause in order to permit defendant to get additional counsel, or denial of a constitutional 'right' to be 'warned' of rights that he had, including the 'right to a continuance.'
Defendant's petition in the trial court wholly omits any mention of any constitutional provision. Under the general rule, it is the duty of...
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