Gonzalez v. Gonzalez

• Decision Date: 22 June 1955
• Docket Number: Gen. No. 46571
• Citation: Gonzalez v. Gonzalez, 127 N.E.2d 673, 6 Ill.App.2d 310 (Ill. App. 1955)
• Parties: Nancy GONZALEZ, Appellee, v. Victor GONZALEZ, Jr., Appellant.
• Court: Appellate Court of Illinois

Page 673

127 N.E.2d 673

6 Ill.App.2d 310

Nancy GONZALEZ, Appellee, v. Victor GONZALEZ, Jr., Appellant.

Gen. No. 46571.

Appellate Court of Illinois, First District, First Division.

June 22, 1955.

Seidner & Seidner, Chicago (Emmanuel John Seidner, Chicago, of counsel), for appellant.

Irving Eisenman and A. C. Lewis, Chicago, for appellee.

FRIEND, Justice.

Plaintiff filed her complaint for divorce charging defendant with extreme and repeated cruelty, as well as desertion. Defendant's answer denied the charges of cruelty, denied that he had deserted defendant, and, on the contrary, averred that plaintiff had deserted him. He also filed a counterclaim for divorce charging plaintiff with desertion. The issues raised by the pleadings were tried by jury. During the early part of the trial, and before plaintiff had completed her case under the complaint, and outside the presence of the jury, defendant presented to the court his written special motion to dismiss his counterclaim on the ground that the securing of a divorce was repugnant to his religious belief. The trial judge entered an order denying the special motion. Subsequently the jury brought back two verdicts under which the issues on the complaint and counterclaim were found in favor of defendant. Immediately after these verdicts were returned defendant renewed his motion for the voluntary dismissal of his counterclaim, based upon the same special motion to dismiss, and supported by affidavit. The court entered an order dismissing the counterclaim with prejudice. At the same time the court entered a decree on the verdict on plaintiff's complaint, dismissing her complaint for want of equity. Later plaintiff filed a written motion requesting the court 'to vacate and set aside the decretal order entered in this cause dismissing the counterclaim of the Defendant'; and also 'to set aside and vacate the decretal order entered in this cause dismissing the Complaint for want of equity; * * * to enter a judgment non obstante veredicto; * * * and in the alternative, to grant the Plaintiff a new trial.' Without ruling on plaintiff's motion to vacate and set aside the decree dismissing the counterclaim of defendant, the court entered an order allowing plaintiff's motion to vacate and set aside the order dismissing the complaint for want of equity, denying plaintiff's motion for judgment non obstante veredicto, and granting a new trial. Defendant appeals from the order entered dismissing with prejudice his counterclaim.

The question presented is whether the court erred in ordering the dismissal with prejudice of defendant's counterclaim for divorce in response to his motion for voluntary dismissal, after verdicts in his favor were rendered on both the complaint and counterclaim.

Defendant's counsel say that they have been unable to find any precedent in the law of Illinois for such an order, and we know of none. Although voluntary dismissal after trial has commenced is not allowable, courts have gone no further than to deny motions of that kind. When the jury returned its verdict in defendant's favor on the counterclaim, he was entitled to the entry of a decree for divorce. However, in the early part of the trial and before plaintiff had completed her case on the complaint, he had presented his written special motion to dismiss on the ground that the securing of a divorce was repugnant to his religious belief, and he supported said motion by a sufficient affidavit. After defendant's motion for the voluntary dismissal of the counterclaim was denied by the court in the first instance, defendant's attitude did not change, and immediately after the jury returned its verdict on the counterclaim in his favor, he renewed his motion, based on the same ground and affidavit. No objection was raised by plaintiff to the motion. The court was then called upon to determine whether defendant was or was not entitled to the voluntary dismissal. The merits of the counterclaim had been decided by the jury in his favor. We think that under the circumstances and in accordance with the public policy of the State the court should have allowed the motion; refusal to do so constituted a final adjudication of the counterclaim on its merits after the verdict of the jury in defendant's favor. In Fidelity & Casualty Co. of New York v. Heitman Trust Co., 317 Ill.App. 256, 46 N.E.2d 155, 161, we were required to pass upon the validity and effect of an order dismissing another and related case upon plaintiff's motion for voluntary dismissal and without compliance with section 52 of the Civil Practice Act. (Ill.Rev.St.1953, ch. 110, § 176). It was there argued that the dismissal of the other case (likewise a Superior Court proceeding) was res adjudicata. In holding that even the failure to comply with section 52 of the Civil Practice Act did not have the effect of making the order of dismissal a final adjudication, the court said: 'In any event, the failure of plaintiff to comply with the...