Krasauski v. Birbalas

• Decision Date: 30 November 1962
• Docket Number: No. 37102,37102
• Citation: 186 N.E.2d 364,26 Ill. 2d 163
• Parties: Alice KRASAUSKI, Appellant, v. Joseph V. BIRBALAS, Appellee.
• Court: Illinois Supreme Court

Page 364

186 N.E.2d 364

26 Ill.2d 163

Alice KRASAUSKI, Appellant, v. Joseph V. BIRBALAS, Appellee.

No. 37102.

Supreme Court of Illinois.

Nov. 30, 1962.

Joseph J. Gasior and Stephen M. Oleszkiewicz, Chicago, for appellant.

Torme, Kanter & Horwich, Chicago (Joseph H. Horwich, Chicago, of counsel), for appellee.

SCHAEFER, Justice.

For want of jurisdiction of the subject matter, and lack of capacity of the plaintiff to maintain the action, the superior court of Cook County dismissed a complaint filed by Alice Krasauski. Briefly summarized, the essential allegations of the complaint were that the plaintiff is the sole heir of Michalina Skrodenis, who, during her lifetime, had been prevailed upon by the fraud, false representations and undue influence of the defendant, Joseph V. Birbalas, to transfer, without consideration, the title to real estate that she owned into joint tenancy with him; that by similar practices the defendant had prevailed upon the decedent, at a time when she lacked testamentary capacity, to execute a will which left all of her real and personal property to the defendant; that the defendant had also, by similar fraudulent practices, obtained money, securities and other assets from the decedent 'before or after' her death. It was alleged that the will was filed in the probate court of Cook County in March of 1961, two days after the death of the decedent, but that the executor, who was the defendant's attorney, had not sought to have it admitted to probate or to have letters testamentary issued.

The complaint prayed that the inter vivos conveyance of the decedent's land be set aside and that the defendant be required to account for rents, issues and profits; that he be enjoined from selling or disposing of the real estate or of any personal property of the deceased; that the defendant be required to disclose and account for personal assets of the decedent in his possession or of which he has knowledge, and that the purported will of the decedent be set aside and her property be distributed to her heirs.

The defendant's motion to dismiss was based upon two grounds: (1) that the court lacked jurisdiction of the subject matter of the action because under the constitution and applicable statutes 'the Probate Court of Cook County has original jurisdiction of all probate matters'; and (2) that the plaintiff did not have legal capacity to sue because 'she has not had heirship of said deceased declared by the Probate Court of Cook County.' The motion to dismiss was sustained, and the complaint was dismissed.

The plaintiff has appealed directly to this court upon the grounds that a freehold is involved, as well as a construction of section 20 of article VI of the constitution, S.H.A., which delineates the jurisdiction of probate courts. As to the first of these asserted grounds of jurisdiction, it has often been held that although a freehold 'may be involved in the issues before the trial court, this court has no jurisdiction of a direct appeal therefrom unless a freehold is involved in the question to be determined on appeal.' (Frerichs v. Foreman, 407 Ill. 507, 511, 95 N.E.2d 452, 454.) In the present case the issues presented in this court do not concern the merits of the plaintiff's claim of title, but involve only procedural questions related to her right to assert that claim at this time and in this action. In numerous cases in which similar issues have been presented, we have held that this court lacks jurisdiction upon a direct appeal. (See, e. g., Frerichs v. Foreman, 407 Ill. 507, 511, 90 N.E.2d 452, (res judicata); Hawkins v. City of Elgin, 1 Ill.2d 540, 116 N.E.2d 81, (laches); McCarthy v. McCarthy, 6 Ill.2d 52, 57, 126 N.E.2d 633, (res judicata), and Smith v. Condo, 19 Ill.2d 228, 229, 166...