Jackson v. Jackson

• Decision Date: 31 March 1938
• Docket Number: Gen. No. 9274.
• Citation: 294 Ill.App. 508,14 N.E.2d 276
• Parties: JACKSON v. JACKSON.
• Court: United States Appellate Court of Illinois

294 Ill.App. 508

14 N.E.2d 276

JACKSON

v.JACKSON.

Gen. No. 9274.

Appellate Court of Illinois, Second District.

March 31, 1938.

Appeal from Circuit Court, Will County; Edwin L. Wilson, Judge.

Divorce proceeding by Laura May Jackson against Nicholas J. Jackson, wherein plaintiff filed a petition for alimony and attorney's fees pending defendant's appeal from a decree for plaintiff, and defendant filed a petition for a change of venue. From an order granting plaintiff $500 as solicitor's fees and denying defendant's application for a change of venue, the defendant appeals.

Order denying the change of venue reversed and cause remanded. Raymond J. Harvey and Pence B. Orr, both of Joliet, for appellant.

Baskin & Miller, of Joliet, for appellee.

DOVE, Presiding Justice.

On August 6, 1937, the circuit court of Will county rendered a decree awardingLaura May Jackson a divorce from Nicholas J. Jackson. On the same day a notice of appeal was filed which was, on August 16, 1937, made a supersedeas. Thereafter, at the February term, 1938 of this court, said cause was submitted on briefs and oral arguments of counsel and an opinion therein, being General No. 9273, 14 N.E.2d 271, is this day filed.

On August 20, 1937, counsel for the plaintiff served counsel for defendant with a notice and a copy of a petition for alimony and attorney fees pending said appeal. The notice was to the effect that on August 23, 1937, counsel would appear before the circuit court of Will county and present to the court said petition and request the court to enter an order in accordance with the prayer of that petition. On August 21, 1937, counsel for the defendant served upon counsel for the plaintiff a notice to the effect that on August 23, 1937, they would file in said circuit court a petition asking for a change of venue from Judge Edwin L. Wilson, the chancellor who heard the original proceeding. Attached to this notice was the verified petition of the defendant praying for a change of venue from Judge Wilson.

The petition of the plaintiff Laura May Jackson represented that on August 6, 1937, the court had rendered a decree upon her original complaint awarding her a divorce, dismissing defendant's counterclaim, and ordering the defendant to pay her $1,500 in full of alimony and the further sum of $1,000 for her solicitor fees on or before August 21, 1937. The petition further recited that during the pendency of the original proceeding the defendant paid the plaintiff the sum of $20 per week, but that she is not receiving any sum for her support during the pendency of the appeal. The petition prayed for an order directing the defendant to pay to the plaintiff during the pendency of the proceeding on appeal the sum of $20 per week and the further sum of $1,000 for her solicitor fees on appeal. On August 23, 1937, this petition, together with defendant's application for a change of venue, came on to be heard before Judge Wilson, who denied defendant's application for a change of venue and after so doing announced that alimony would be allowed the petitioning plaintiff in the sum of $20 per week and should be paid to the plaintiff pending the appeal starting the following Monday and that a solicitor's fee of $500 should be paid by the defendant within thirty days, the order, however, which was subsequently entered, recites that the plaintiff withdrew her petition for temporary alimony, but did direct the defendant to pay to the circuit clerk on or before September 23, 1937, for the benefit of the plaintiff the sum of $500 as solicitor's fees. From this order this appeal has been perfected.

The record discloses that counsel for appellee contended in the lower court that the petition of appellee was filed in the original divorce proceeding and that it is a continuation of that proceeding, that the application of appellant for a change of venue came after the hearing and after a decree had been rendered in the original proceeding, and was therefore presented too late. Counsel for appellant call our attention to section 1 of chapter 146, Ill.Rev.Stat.1937, which provides “that a change of venue in any civil suit or proceeding in law or equity * * * may be had * * * where either party shall fear that he will not receive a fair trial in the court in which the suit or proceeding is pending, because * * * the judge is prejudiced against him,” and insist that the instant application is a proceeding within the meaning of this statute, is supplemental to the divorce decree which finally determined the rights of the parties, and that after the petition for a change of venue was presented, the only order the chancellor could have entered was one granting the prayer of the petition.

No objection is made to the form, substance, or sufficiency of the petition for a change of venue or of the notice to opposite counsel that a change of venue would be applied for, and the record discloses that the petition was presented to the court at the very first opportunity counsel had. It is true that the issues formed by the complaint of appellee, appellant's anwer thereto, the counterclaim of appellant, and the reply thereto were submitted to Judge Wilson and a final decree had been awarded from which appellant had prosecuted an appeal to this court. Section 16 of chapter 40, Ill.Rev.Stat.1937, provides among other things that, “in case of appeal by the husband or wife, the court in which the decree or order is rendered may grant and enforce the payment of such money for her or his defense * * * as to such court shall seem reasonableand proper.” In pursuance to the provisions of this section of the statute, appellee filed the instant petition and the question for determination is whether such a matter, so presented, is a suit or proceeding within the meaning of section 1 of chapter 146 of our statutes.

“Suit” is defined as “a proceeding in a court of justice for the enforcement or protection of a right or...