Goldberg v. Goldberg (In re Goldberg's Estate)

• Decision Date: 18 January 1937
• Docket Number: Gen. No. 9126.
• Citation: 5 N.E.2d 863,288 Ill.App. 203
• Parties: IN RE GOLDBERG'S ESTATE. GOLDBERG v. GOLDBERG.
• Court: United States Appellate Court of Illinois

288 Ill.App. 203

5 N.E.2d 863

IN RE GOLDBERG'S ESTATE.

GOLDBERG

v.GOLDBERG.

Gen. No. 9126.

Appellate Court of Illinois, Second District.

Jan. 18, 1937.

Appeal from Circuit Court, Lake County; Edward D. Shurtleff, Judge.

In the matter of the estate of Philip Goldberg, deceased. After letters of administration were taken out, Minnie Libby Goldberg, the first wife of deceased, asked the probate court to declare that divorce proceedings whereby deceased had obtained divorce from her be held null and void, and such application was opposed by Goldie Goldberg, the second wife. The probate court found against Minnie Libby Goldberg, but on appeal the circuit court made an order that the divorce decree was void, and from such order Goldie Goldberg appeals.

Affirmed in part, and reversed in part.

DOVE, J., dissenting. Shulman, Shulman & Abrams, of Chicago, for appellant.

Edward J. McArdle, Jr., and Harry C. Kinne, both of Chicago, for appellee.

WOLFE, Justice.

This case is brought to this court on appeal from a decree of the circuit court of Lake county, in which the appellee Minnie Libby Goldberg, was declared to be the legal widow and heir at law of Philip Goldberg, deceased.

For a great many years, Philip Goldberg lived in Highland Park in Lake county, Ill. His first wife was Minnie Libby Goldberg. Minnie Libby Goldberg was adjudged to be insane on August 22, 1906. She was committed to the Elgin Hospital for the Insane at that time, and has remained in this institution as an insane person up until the day of the trial of this case. Philip Goldberg, now deceased, filed his bill for divorce June 28, 1909, in the circuit court of Cook county, charging his wife with extreme and repeated cruelty. He alleged that the acts of cruelty were committed prior to the time that she became insane. In his bill, he alleged that he was a bona fide resident of Cook county, state of Illinois, for more than a year. The defendant, Minnie Libby Goldberg, was personally served with a summons to appear and defend the suit. On motion of the complainant's attorney, the trial court appointed Harry C. Kinne, an attorney at law, as guardian ad litem to represent Mrs. Goldberg in the divorce proceeding. An answer was filed by Mr. Kinne alleging that Mrs. Goldberg was an insane person, who was confined in the Elgin State Hospital for the Insane. The answer denied each and every material allegation of the bill and called for strict proof of the same.

A hearing was had on the bill and answer before the court. Philip Goldberg testified that he had been an actual resident of the state of Illinois for twenty-five or more years, and for the past three years had been an actual resident of Cook county, and that he lived at 238 West Fourteenth street in Chicago, Ill. He proved several instances of his wife's severe and repeated cruelty toward him, prior to the time that she was adjudged insane. On July 29, 1909, the court entered a decree finding that Philip Goldberg was an actual resident of the city of Chicago, and a resident of the state of Illinois, for more than one year prior to the filing of his bill for a divorce. The divorce was granted.

Shortly after Philip Goldberg obtained his decree of divorce from Minnie Libby Goldberg, he was married to Goldie F. Davidson, in the city of Kenosha, Wis., and they lived together as husband and wife until the death of Philip Goldberg.

After the death of Philip Goldberg, letters of administration were taken out on his estate in probate court of Lake county. Minnie Libby Goldberg, through her attorney, asked the probate court of said county to declare that the divorce proceeding held in Cook county in 1909--wherein Philip Goldberg was the complainant and Minnie Libby Goldberg the defendant--be held null and void, because Philip Goldberg and his attorney had perpetrated a fraud upon the circuit court of Cook county in that, at the time of said divorce proceeding, the said Philip Goldberg was not a resident of Cook county, but was a bona fide resident of Lake county; and that said circuit court did not have jurisdiction in the case. A hearing was had before the probate court, and the court found against Minnie Libby Goldberg. The case was appealed to the circuit court of said county, and after a hearing before the court, that court found in favor of Minnie Libby Goldberg. An order was signed finding that at the time of said divorce proceedings, the said Philip Goldberg was not a resident of Cook county, but a resident of Lake county, and that said Philip Goldberg and Harry C. Kinne, the attorney, and guardian ad litem for Minnie Libby Goldberg, in said divorce proceedings, had perpetrated a fraud upon the court and induced the court to take jurisdiction of the case and grant the divorce, and that the court was without jurisdiction to hear said case and said decree was null and void, and that Minnie Libby Goldberg is the lawful widow and an heir at law of Philip Goldberg, deceased. It was from this order that this appeal has been perfected.

Section 6 of chapter 40, Smith-Hurd Ann.St., relative to the venue in a divorce proceeding is as follows: “The proceedings shall be had in the county where the complainant resides, but process may be directed to any county in the State.” This section of the statute is mandatory in regard to where the complainant in a divorce proceeding must file his suit, and to give the court jurisdiction, the plaintiff must reside in the county in which he filed his suit. This court in the case of Sommers v. Sommers, 16 Ill.App. 77, so held, and to the same effect is the case Way v. Way, 64 Ill. 406;Horix v. Horix, 256 Ill.App. 436.

At the hearing before the circuit court, the appellee introduced numerous witnesses to testify to the place of residence of Philip Goldberg at the time he filed his divorce proceeding in the circuit court of Cook county. To review this evidence would serve no material purpose, but we have read the abstract and also the record of the testimony of the various witnesses who testified in the case, and it is our conclusion that the evidence clearly shows, and we so find, as a matter of fact, that at the time Philip Goldberg filed his suit for a divorce in Cook county, and at the time of the hearing of the same in said court, he was not a resident of Cook county, but was a bona fide resident of Lake county.

The question then arises: In what court can the validity of this divorce proceeding be questioned? Is it necessary to file a bill of review, or some other appropriate action, in Cook county to question the validity of this divorce, or can it be raised, as it is done, in this case by a collateral attack? It is insisted by the appellant that a divorce decree procured by fraud cannot be collaterally attacked and the recitals in the decree are conclusive in our courts. There are many cases that hold that this is the correct rule, but there are exceptions to this rule, and the main one is that where the fraud, which gives the court only colorable jurisdiction, renders the decree void and subject to collateral attack. From the evidence in this case, it is our opinion that Philip Goldberg perpetrated a fraud upon the circuit court of Cook county, and gave it only colorable jurisdiction to hear his case, and that the decree rendered by the said court was void and subject to collateral attack. Our courts have frequently held that a decree will not be set aside upon the ground that it was obtained by false evidence, but only for fraud that gives the court colorable jurisdiction. Evans v. Woodsworth, 213 Ill. 404, 72 N.E. 1082;Caswell v. Caswell, 120 Ill. 377, 11 N.E. 342.The case of Field v. Field, 215 Ill. on page 496, 74 N.E. 443, 444, is in many respects similar to the one now before us. The action was brought in the probate court in Cook county by the appellee, to have a widow's award allowed, as fixed by the appraisers of the estate of James H. Field. It appears that Frances C. Field was married to James H. Field; that James H. Field in December, 1878, filed a suit for divorce in Boone county, Neb., in which he alleged he was a resident of Nebraska one year and was then a resident of Boone county in said state. He was granted a divorce on the hearing of his case. In April, 1879, he married Cloe M. Field and they lived together until his death, which occurred in 1894. The only question to be determined was: Who was the lawful widow of James H. Field at the time of his death? The court recites the facts as appearing from the evidence, and found that James H. Field was not a resident of the state of Nebraska, but was a resident of Cook county, at the time he filed his suit for a divorce. In discussing the case, the court used this language: “Appellee denies that she ever had notice of the decree in the state of Nebraska until after the death of Field (and in this contention she is not contradicted), but admits that she knew that appellant and Field were living together in Chicago from the time he deserted her, in 1869, until the time of his death; and, if the courts in Nebraska did not have jurisdiction of the parties and of the subject-matter, then the decree rendered in that state is void. Courts of this state may inquire into the proceedings, judgments, and decrees of a court of another state to determine if that court had jurisdiction of the subject-matter and of the parties; and there can be no question but that all judgments and decrees rendered by a court without such jurisdiction are void, and have no binding effect upon the party aggrieved. There can be no other conclusion reached, in the face of this record, than that deceased went to Nebraska for the express purpose of obtaining a divorce from his wife, and that in doing so he concealed his actions from her, and practiced fraud upon the court by stating that he did not know her actual place of residence, when in fact he did know, and was in constant communication with a part of the family. By his...