Norwood v. Norwood

• Decision Date: 17 February 1948
• Docket Number: Gen. No. 44097.
• Citation: Norwood v. Norwood, 333 Ill.App. 469, 77 N.E.2d 552 (Ill. App. 1948)
• Parties: NORWOOD v. NORWOOD et al.
• Court: Appellate Court of Illinois

333 Ill.App. 469

77 N.E.2d 552

NORWOOD

v.NORWOOD et al.

Gen. No. 44097.

Appellate Court of Illinois, First District, Second Division.

Feb. 17, 1948.

Appeal from Superior Court, Cook County; George M., Judge.

Suit for divorce by Lorraine Norwood against Jens Norwood, wherein the court indicated that a decree of divorce in favor of the plaintiff would be granted. From an order denying plaintiff's motion to dismiss her suit, from an order denying her motion for change of venue, and from decree for divorce entered on motion of defendant's counsel over objection of the plaintiff, the plaintiff appeals, and Sidney Dry, conservator of the estate of Jens Norwood, an incompetent, is made a party to the appeal.

Decree reversed and cause remanded with directions to vacate decree and dismiss complaint.Vogel & Bunge, of Chicago (L. H. Vogel, Robert C. Vogel, and Forrest S. Blunk, all of Chicago, of counsel), for appellant.

Isaac B. Lipson, of Chicago, for appellees.

FRIEND, Presiding Justice.

October 3, 1946, plaintiff filed her complaint against defendant for separate maintenance. Subsequently on November 29, 1946, an amended complaint for divorce was filed, alleging habitual drunkenness on the part of defendant. The amended complaint recited an agreement for property settlement, under the terms of which plaintiff was to receive $3500 cash in lieu of alimony. Counsel entered their appearance for defendant but filed no answer. The parties then stipulated in writing that the cause be heard as a default matter on the ground of habitual drunkenness, with an agreed property settlement in lieu of alimony, subject to the approval of the court. When the matter was heard on December 3, 1946, the court indicated that a decree for divorce in favor of plaintiff would be granted. However no decree was presented by plaintiff, and on December 27, 1946, defendant's counsel filed a petition, reciting the previous pleadings in the cause, the stipulation for property settlement and payment thereof, the hearing and the absence of a decree, and prayed for an order on plaintiff to present instanter a decree for divorce. December 30, 1946, plaintiff answered defendant's petition and filed a cross-petition. The answer averred that defendant's petition did not present a meritorious issue and was not supported by affidavit, as required by the rules; that it was not signed by the defendant or any of his authorized agents; that the petition was improper because defendant was at the time of the filing thereof mentally incompetent and incapable of making a petition or any decision in the matter; and that there was a property settlement but that the sum paid plaintiff was withdrawn from the joint accounts of the parties and represented funds belonging to her. The cross-petition alleged that plaintiff did not learn until after the hearing on December 3, 1946, that defendant was mentally and physically ill; that he did not want a divorce; that plaintiff was convinced on information received after the hearing that defendant's conduct was the result of his mental incompetence, rather than intemperate habits, as previously alleged in her complaint; that he had been removed by strangers from Michael Reese Hospital, where he was receiving medical care, to North Shore Sanitarium, without plaintiff's knowledge; and she prayed that the motion of defendant be denied and the case dismissed. Subsequent to the notice of appeal in this case Sidney Dry was appointed conservator of the estate of the defendant by the Probate Court of Cook County and has been made a party to this appeal. At the same time that plaintiff filed her answer and cross-petition she also filed a petition for change of venue, alleging prejudice on the part of the trial judge. The court denied the motion for a change of venue, and after a hearing on the complaint, answer and cross-petition, denied plaintiff's motion to dismiss the case and entered a decree for divorce. Plaintiff appeals from the order denying her motion to dismiss her suit, from the order denying her motion for change of venue, and from the decree for divorce entered on motion of defendant's counsel.

Plaintiff has evidently abandoned the contention that the court improperly denied her motion for change of venue because the matter is not argued in her brief. The principal question therefore presented is whether she had the right to have her suit dismissed prior to the entry of a decree. Before the enactment of the Civil Practice Act (Ill.Rev.Stat.1947, ch. 110) it was held to be the settled rule in this state that a complainant had the right at any time before decree to dismiss his bill unless a cross-bill had been filed. Schaller v. Huse, 330 Ill. 345, 161 N.E. 727. Our practice in chancery followed the English chancery practice under which the complaint retained the absolute control of the suit and was allowed to dismiss it at his discretion at any time before decree had actually been entered. Whitaker v. Irons, 300 Ill. 254, 133 N.E. 265. Section 52 of the Civil Practice Act, Ill.Rev.Stat.1947, c. 110, § 176, confirms this practice in cases where the motion is made at any time before trial, but provides that thereafter dismissal may be had only (1) upon filing a stipulation signed by defendant or (2) ‘on the order of the court or judge made on special motion in which the ground for such dismissal shall be set forth and which shall be supported by affidavit.’ In this proceeding plaintiff complied with...