A.M., Matter of
Decision Date | 12 October 1984 |
Docket Number | Nos. 83-1541,s. 83-1541 |
Citation | 470 N.E.2d 58,128 Ill.App.3d 100,83 Ill.Dec. 303 |
Parties | , 83 Ill.Dec. 303, 20 Ed. Law Rep. 1207 In the Matter of A.M., P.F., and D.H.J., minors. PEOPLE of the State of Illinois, Plaintiff-Appellee, v. A.M., P.F., and D.H.J., minors Consolidated, Respondents-Appellants. to 83-1543. |
Court | United States Appellate Court of Illinois |
Richard M. Daley, State's Atty., County of Cook, Chicago (Michael E. Shabat, Timothy J. Joyce, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.
James J. Doherty, Public Defender of Cook County, Chicago, for respondents-appellants.
In separate actions, each of the minor respondents, A.M., P.F., and D.H.J., was adjudged in indirect contempt of court for violation of a court order to attend school and received sentence thereon. The separate appeals were consolidated for review. The common issue is whether the trial court initially entered a valid order against the minor respondent upon which to sustain the contempt of court conviction. We reverse the judgment in each case.
The separate actions were commenced by the filing of a misdemeanor complaint solely against the minor respondent's mother, as defendant, for the offense of non-compliance with Section 26-1 of the School Code (Ill.Rev.Stat.1981, ch. 122, par. 26-1) for wilfully permitting her minor child, respondent herein, to persist or continue in truancy within the school year. The summons served on each mother commanding her appearance as defendant also contained the following: "(The presence of your daughter [respondent's name] is requested)". A subpoena was issued and served upon P.F.; none was issued nor served upon the other respondents. At the time of the respective proceedings, A.M. was 15 years of age, P.F. was 13, and D.H.J. was 13.
In each case, both the defendant mother and the minor respondent were present before the court for all hearings. Following a hearing, the minor respondent was ordered to attend school with "no tardies, no cut classes, and no unexcused absences", and the mother and minor respondent were ordered to appear with a status report on a specified date. At the later hearings, the court in each case entered a written Rule to Show Cause which was served upon the minor respondent in open court, and appointed a public defender as guardian ad litem and another to represent her. The Rule to Show Cause was identical in each case and set forth that "the matter of Indirect Contempt of Court by said Respondent is considered by this Court" and found (1) that the respondent's parent, [defendant parent] is charged with the offense of Non-Compliance, (2) that [minor respondent] was ordered on [date] to resume school attendance, and that since [date] the respondent had [number] unexcused absences from school. The rule ordered that [minor respondent] appear personally and say why an order should not issue finding and adjudging the said [minor respondent] to be in contempt of court.
At the subsequent hearings pursuant to the Rule to Show Cause, the minor respondents' motions to dismiss the Rule were each denied. Each minor respondent was adjudged in wilful contempt of court and hearings in aggravation and mitigation were held. A.M. was sentenced to a conditional discharge for one year upon term that she attend classes full time, enroll in summer school, be detained at the Audy Home for 30 days with mittimus stayed for the summer session, and follow all recommendations of appropriate family counselling. A motion in arrest of judgment and for new trial was denied. Thereafter A.M. was found in violation of conditional discharge, conditional discharge revoked, and sentence of 60 days in the Audy Home imposed for contempt of court.
P.F., following denial of a motion to dismiss the Rule, was found in wilful contempt and sentenced to a reporting conditional discharge for one year and to be detained for 60 days in the Audy Home and undergo drug and family counselling. D.H.J., following denial of her motion to dismiss, was found guilty of wilful contempt and sentenced to reporting conditional discharge for one year upon terms: (1) 10 days in Audy Home, (2) attend family and drug counselling, and (3) attend school regularly.
Each of the complaints against the defendant mothers was stricken with leave to
[83 Ill.Dec. 305] reinstate. The appeals of the minor respondents have been consolidated for review.
OPINIONThe minor respondents contend that the trial court lacked jurisdiction to order them to attend school because they were not made parties to the litigation by service of summons or otherwise and consequently they may not properly be held in contempt of court for violating the order.
Courts have the inherent power to enforce their orders by way of contempt and this power may not be restricted by the legislature. (In re G.B. (1981), 88 Ill.2d 36, 41, 58 Ill.Dec. 845, 430 N.E.2d 1096.) "In testing the validity of a finding of contempt a court may review and should review the validity of the underlying * * * orders." (Armentrout v. Dondanville (1979), 67 Ill.App.3d 1021, 1028, 24 Ill.Dec. 688, 385 N.E.2d 829.) As stated in Faris v. Faris (1966), 35 Ill.2d 305, 309, 220 N.E.2d 210:
Contempt will not lie for disobeying an order which is void for want of subject matter or because the court has no power to decide the particular matter. (Armentrout v. Dondanville (1979), 67 Ill.App.3d 1021, 1028, 24 Ill.Dec. 688, 385 N.E.2d 829; see also In re R.R. (1982), 92 Ill.2d 423, 65 Ill.Dec. 941, 442 N.E.2d 252 ( ).) Generally, a court acquires jurisdiction over a person only after a proper service of summons. (Augsburg v. Frank's Car Wash, Inc. (1982), 103 Ill.App.3d 329, 333, 59 Ill.Dec. 39, 431 N.E.2d 58; see also Knightsbridge Realty Partners v. Rudolph (1982), 106 Ill.App.3d 354, 357, 62 Ill.Dec. 251, 435 N.E.2d 1223.) This was not done in any of the cases on appeal.
Moreover, while the subject of each respondent's truancy was a matter potentially within the subject matter jurisdiction of the circuit court, the only matter pending before that court was the action against the mothers for wilful noncompliance with the School Code. In an analogous context, our supreme court has observed that (Munroe v. The People (1882), 102 Ill. 406, 411-12.) In each case sub judice the minor respondent was not even served with process nor made a party for any purpose. The orders were entered in an entirely collateral proceeding. The jurisdiction of the circuit court, then, was not invoked for the purpose of ordering the respondents to attend school. (See Munroe v. The People; Hanifan v. Needles (1884), 108 Ill. 403, 411-12; Wackerle v. The People (1897), 168 Ill. 250, 255-56, 48 N.E. 123.) Accordingly, the circuit court was without jurisdiction to enter the orders.
Plaintiff argues that the circuit court nonetheless could properly exercise personal jurisdiction over the minor respondents because of their physical presence before the court and the inclusion of their names on the truancy petitions against their mothers. To the extent that these facts constituted notice to the minor respondents of the action pending in the circuit court, they are insufficient to confer jurisdiction. (Augsburg v. Frank's Car Wash, Inc.) Plaintiff argues, however, that these facts constitute appearances by the respondents sufficient to vest the circuit court with jurisdiction.
An exception to the rule that a court only acquires personal jurisdiction after proper service of summons is where a defendant or respondent appears or is permitted to intervene. 1 (Augsburg v. Frank's Car Wash, Inc.) The instant case does not present a question of intervention, so we will proceed to analyze whether the minor respondents appeared in the trial court. "Appearance" as that word is used in this connection is a technical term meaning more than physical presence. (See Rockdale Cable T.V. Co. v. Spadora (1981), 97 Ill.App.3d 754, 758, 53 Ill.Dec. 171, 423 N.E.2d 555; 6 C.J.S. Appearances, pp. 27-28.) (Supreme Hive Ladies of the Maccabees of the World v. Harrington (1907) 227 Ill. 511, 525, 81 N.E. 533.) The question before us then is whether the minor respondents in the instant cases did any act which recognized the power of the court to act. (Lord v. Hubert (1957), 12 Ill.2d 83, 87, 145 N.E.2d 77; Ford v. Continental Illinois National Bank and...
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