Layton v. Layton

• Decision Date: 18 November 1954
• Docket Number: No. 33217,33217
• Citation: 122 N.E.2d 531,4 Ill.2d 241
• Parties: Genevleve LAYTON, Appellant, v. George H. LAYTON, Appellee.
• Court: Illinois Supreme Court

Page 531

122 N.E.2d 531

4 Ill.2d 241

Genevleve LAYTON, Appellant, v.George H. LAYTON, Appellee.

No. 33217.

Supreme Court of Illinois.

Nov. 18, 1954.

George Yellen, Chicago, for appellant.

Denenberg & Notkin, Chicago, for appellee.

DAILY, Justice.

Based upon the theory that a constitutional question is involved which confers jurisdiction upon this court, Genevieve Layton, the appellant, seeks direct review of a decree of the circuit court of Cook County awarding separate maintenance to her husband George H. Layton, the appellee.

The record discloses that appellant filed a complaint for separate maintenance and that appellee filed a counterclaim for the same relief.In neither pleading, nor in the answers thereto, was there presented any question as to a construction of the constitution or of the constitutional validity of a statute.The cause was referred to a commissioner who heard testimony and filed a report upon which the chancellor based the decree granting relief to appellee.The decree neither mentioned nor disposed of a constitutional issue.Thereafter, appellant filed a motion to vacate the decree alleging, among other things, that section 1 of the Separate Maintenance Act(Ill.Rev.Stat.1953, chap. 68, par. 22,) is constitutionally deficient for lack of a proper title as required by section 13 of article IV of the Illinois constitution, S.H.A.The trial court denied the motion stating in its order that it 'did necessarily consider the constitutionality and validity of Section 22, Chapter 68, of the Illinois Revised Statutes.'The extent of the constitutional inquiry or the basis for the decision is not shown.

Such a record is utterly incapable of supporting a direct appeal to this court.This court has held many times that the validity of a statute is involved, so as to confer jurisdiction by direct appeal, only where its constitutionality was a primary inquirey in the trial court, and even though a constitutional issue was raised in a trial court but a final order was rendered on other issues, no constitutional question is presented for review on appeal to this court.Jenisek v. Riggs, 381 Ill. 290, 293, 44 N.E.2d 902;Grutzius v. Armour & Co., 377 Ill. 447, 451, 36 N.E.2d 707.Further, it is established by our decisions that the right to question the validity of a statute may by waived, either by act or omission, by participating in litigation which by fair inference acknowledges the validity of the statute, or by any course of conduct which shows an intention to waive any question as to the validity of the statute, or where it would be unjust to others to permit objection to afterward be made.Continental Paper Grading Co. v. Howard T. Fisher & Associates, Inc., 1 Ill.2d 37, 115 N.E.2d 291;People v. Gibbs, 349 Ill....