Failing v. Failing

• Court: Illinois Supreme Court
• Writing for the Court: DAILY
• Citation: Failing v. Failing, 4 Ill.2d 11, 122 N.E.2d 167 (Ill. 1954)
• Decision Date: 25 October 1954
• Docket Number: No. 33193,33193
• Parties: Fay M. FAILING, Appellee, v. Charles K. FAILING, Appellant.

Page 167

122 N.E.2d 167

4 Ill.2d 11

Fay M. FAILING, Appellee, v. Charles K. FAILING, Appellant.

No. 33193.

Supreme Court of Illinois.

Oct. 25, 1954.

Joseph M. Taussig, Chicago, for appellant.

No appearance for appellee.

DAILY, Justice.

This appeal stems from a separate maintenance proceeding commenced in the circuit court of Cook county by appellee, Fay M. Failing, against her husband, Charles K. Failing, the appellant. The issue presented is whether the trial court had jurisdiction, within the State and Federal concepts of due process of law, to subject real property of appellant to a decree in rem. We have held such an issue as presented here to be a sufficient basis for a direct appeal. Gleiser v. Gleiser, 402 Ill. 343, 83 N.E.2d 693; VanDyke v. Illinois Commercial Men's Ass'n, 358 Ill. 458, 193 N.E. 490.

Among other things, appellee's complaint alleged the parties owned a residence at a certain address in Cook County as joint tenants. There was no legal description of the property; no allegation of special circumstances or equities pertaining to it; no prayer that a lien be established against appellant's interest therein, and no prayer for its seizure by way of injunction or other legal process. In short, the complaint alleged nothing to indicate that a proceeding against the real estate was contemplated. The prayer of the complaint was for a decree of separate maintenance, for temporary support and attorney fees, for an injunction restraining appellant from disbursing certain funds on deposit in a bank, and for general relief. Service was by publication, the notice stating that a decree would be entered against appellant in accordance with the prayer of the complaint, and appellant was defaulted. Thereafter, appellee filed a petition for an award of temporary support and attorney fees and asked that the sums awarded be made a lien against appellant's interest in the real estate. The petition repeated the prayer for an injunction regarding the bank deposit and further asked that appellant be enjoined from disposing of his interest in the real estate. At this juncture, appellant filed a limited and special appearance for the sole purpose of questioning the court's jurisdiction 'to enter any order not based upon the complaint because service was by publication.' After a hearing, the court entered an order in which it concluded that, based on the original complaint, it had jurisdiction to award temporary support and attorney fees and that 'such order shall be construed as an order in rem and shall be chargeable against the defendant's interest in the property more commonly described as the property located at 2030 Marston Lane, Flossmoor, Illinois.' It is from this and a subsequent order fixing the awards, that this appeal is taken, and, in this court, appellee has filed neither an appearance nor brief.

It is an established rule of this State, most recently reiterated in Gleiser v. Gleiser, 402 Ill. 343, 83 N.E.2d 693, that a decree requiring the payment of alimony, support or attorney fees, is a decree in personam. It is fundamental too that no decree in personam may be taken against a defendant where service is by publication. Thus the orders appealed from here can be sustained only if the court had jurisdiction to enter an award in rem. Although a court has no power to enter a decree in personam based solely on constructive service of process against a nonresident defendant, it does have power to deal with his property within the court's territorial jurisdiction. Service by publication is usually sufficient where the object of the action is to reach and dispose of property, or of some interest in the property, within the court's jurisdiction. Williams v. Williams, 221 Ill. 541, 77 N.E. 928; Bickerdike v. Allen, 157 Ill. 95, 41 N.E. 740, 29 L.R.A. 782. It should be noted, too, at this time, that the power to proceed against property for alimony or support, where service is by publication, is not derived from the statutes providing for divorce or separate maintenance, but from the Chancery Act. Sapp v. Wightman, 103 Ill. 150; Leafgreen v. Leafgreen, 127 Ill.App. 184; Ill.Rev.Stat. 1953, chap. 22, pars. 42 and 44.

While it is unquestionably within the court's power, in a proper case, to enter a decree in rem over property when service is by publication, we are met in this cause with the question of whether appellee, by her complaint and notice, brought the property within the control of the court for the purpose of enforcing its orders and whether there was sufficient notice to appellant that it was intended to reach his property in this proceeding.

We find that no clear-cut policy concerning procedure has been established in this jurisdiction. A great many authorities hold that in order to subject property in the court's jurisdiction to the payment of alimony, support, or attorney fees, there must be some prior seizure of the property by way of injunction, sequestration, attachment or other writ, to bring it within the control of the court and to thus give notice to a defendant that his property has been impounded. See 29 A.L.R. 1381; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Pennington v. Fourth National Bank of Cincinnati, 243 U.S. 269, 37 S.Ct. 282, 61...