Kay v. Boehm
| Citation | 32 Ill.App.3d 853,336 N.E.2d 781 |
| Decision Date | 27 August 1975 |
| Docket Number | No. 73--223,73--223 |
| Parties | Gerald KAY, Plaintiff-Appellant, v. Robert I. BOEHM and Alvin W. Block, as Individual persons, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Gerald Kay, pro se.
Block, Levy & Becker, Sidney Abelski, Chicago, for defendants-appellees.
The plaintiff, Gerald Kay, Pro se, a resident of DuPage County, filed a complaint in the circuit court of DuPage County for malicious prosecution and false imprisonment against attorneys Robert I. Boehm and Alvin W. Block, residents of Cook County. The alleged cause of action arose in Cook County where, upon the petition of attorney Boehm, Gerald Kay was found to be in contempt of the circuit court of Cook County and was committed to the Cook County Jail on March 2, 1971. Subsequently, plaintiff filed a petition in the Illinois Supreme Court seeking release from custody, dismissal of the contempt charges and other relief. On May 21, 1971, the Supreme Court denied all relief prayed for except that it allowed him to sue as a poor person. The record does not disclose any further action of the Supreme Court. With his release from custody by Judge Brown of the circuit court of Cook County he was ordered to submit to psychiatric treatment. He was further ordered to desist from filing 'any petitions, papers or documents of any sort whatsoever with this court or any court of this land until the further order of the court.' It appears that he did, in fact, file various documents and apparently did not submit himself to psychiatric treatment and on June 2, 1971 he was recommitted to the Cook County Jail where he remained until September 29, 1971. On February 7, 1973 he filed the instant complaint in the circuit court of DuPage County against both Robert I. Boehm and Alvin W. Block. The defendants filed a general appearance in the latter action and a motion to dismiss, alleging, Inter alia, that the complaint failed to state a cause of action for either false imprisonment or malicious prosecution and that the cause of action did not arise in DuPage County nor did defendant Boehm or Block reside in DuPage County. No motion was filed to transfer the cause to Cook County. Upon a hearing in the circuit court of DuPage County, the trial court dismissed the complaint with prejudice, but interstingly said, '. . . but I would suggest that you get yourself somebody to represent you so that this can be prepared correctly.' The plaintiff then appealed the latter order to this court.
It appears that the instant proceedings arose out of a Cook County divorce proceeding, starting in the year 1965, in which Gerald Kay, the defendant therein, filed nine notices of appeal from the various orders of the circuit court of Cook County; filed five complaints with the Chicago Bar Association against the lawyers therein; and, as indicated above, filed a petition for leave to appeal in the Supreme Court. Additionally, in the divorce proceedings, he filed barratry charges against attorney Boehm, which were dismissed December 17, 1970.
It is difficult to follow the chronology of the activities of the plaintiff herein, and it is even more difficult to comprehend the Pro se pleadings which have been filed from time to time.
As pointed out by defendants, the termination of a prior proceeding in favor of the plaintiff is an essential element in a cause of action for malicious prosecution which must be factually set forth in the complaint. The instant complaint was fatally deficient in this regard. In fact, plaintiff did not have a valid cause of action for malicious prosecution at the time he filed his complaint because the contempt proceeding, upon which the complaint was based, simply did not terminate in his favor. During the pendency of this appeal, on September 5, 1974, the appellate court for the First District reversed the March 2, 1971 contempt order. (Kay v. Kay (1974), 22 Ill.App.3d 530, 318 N.E.2d 9.) The appellate court found that contempt order to be a criminal contempt and further found that the evidence was insufficient to support the criminal contempt finding against the plaintiff. The court observed that Kay was not present in court and that the contempt finding was made without introduction of any evidence. The court further observed that the burden of proof in a criminal contempt case is proof beyond a reasonable doubt as to both act and intent. In reversing the contempt order, the court observed that Kay did, in fact, burden the court with numerous petitions, some of which were unintelligible and that appellant's brief was difficult to comprehend.
It is to be noted that the complaint filed by the plaintiff herein is entitled 'A Complaint for False...
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