Payne v. Payne

• Decision Date: 18 April 1961
• Docket Number: Gen. No. 48225
• Citation: 175 N.E.2d 614,31 Ill.App.2d 141
• Parties: Willa PAYNE, Appellant, v. George PAYNE, Appellee.
• Court: United States Appellate Court of Illinois

Page 614

175 N.E.2d 614

31 Ill.App.2d 141

Willa PAYNE, Appellant, v. George PAYNE, Appellee.

Gen. No. 48225.

Appellate Court of Illinois, First District, Second Division.

April 18, 1961.

Kalcheim & Kalcheim and Spurlark, Washington, Peterson & Walsh, Chicago (Royal E. Spurlark, Jr. and Henry A. Kalcheim, Chicago, of counsel), for appellant.

Meyers & Rothstein, Chicago (Irving Meyers and David B. Rothstein, Chicago, of counsel), for appellee.

FRIEND, Justice.

Each of the parties herein sought a divorce from the other by complaint and counterclaim. The court found that plaintiff failed to comply with the discovery provisions of the Supreme Court rules with respect to separate and full answers (Ill.Rev.Stat.1959, ch. 110, §§ 101.19-11, 101.19-12), as well as with the orders of the trial court with respect thereto; accordingly, her pleadings were stricken, and an order of default was entered against her. The case was then heard as a default matter upon defendant's counterclaim, and a decree of divorce was entered in his favor, from which plaintiff appeals.

On January 17, 1957 she filed her complaint for separate maintenance, and some two years later, on February 2, 1959, her amended complaint seeking a divorce. After preliminary motions addressed to the sufficiency of the amended complaint were disposed of, defendant was given leave to answer or plead within ten days. Within that period he filed his answer denying the material allegations of the amended complaint, and also filed a counterclaim.

On September 17, 1959 defendant served interrogatories upon plaintiff. On March 18, 1960, six months thereafter, in response to defendant's motion for an order compelling plaintiff to answer the interrogatories, the parties agreed to, and the court approved, an extension of time to March 31, 1960. In consequence of plaintiff's failure to answer the interrogatories within the time fixed, defendant, on April 25, 1960, served notice of his motion asking for an order to strike the pleadings of plaintiff and to require her to pay him reasonable attorney's fees for compelling answers to the interrogatories. On plaintiff's request, defendant's motion was continued to April 29, 1960; on that day, plaintiff filed what purported to be her answers to the interrogatories, and she was at that time ordered to pay to defendant's attorneys the sum of $50, pursuant to defendant's previous request. Without objection by plaintiff, the proceeding was set for trial on May 12, 1960, on the issues stated in the pleadings. Several days before the date set for trial, defendant, pursuant to notice, moved to strike plaintiff's answers to the interrogatories on the ground that some were not answered at all and others were not answered responsively; on May 5, 1960 the motion was allowed. On May 9, 1960, defendant moved the court to strike the pleadings of plaintiff and to enter an order of default against her for failure to answer the interrogatories; that motion was allowed on May 9, 1960. The hearing on the issues was then continued from May 12 to May 26, 1960, the case to be heard as a default matter upon defendant's counterclaim. Plaintiff then presented a draft order seeking approval of an appeal bond to be filed in aid of an 'interlocutory appeal,' and on May 31, 1960 she filed her bond in the sum of $250, as fixed by the court. This contemplated appeal was abandoned; no record thereon was filed in the Appellate Court. In the interim, on May 26, 1960, a hearing was had on the counterclaim of defendant, pursuant to the default order of May 9, 1960. Plaintiff did not appear in person or by counsel at that hearing, and subsequently, on June 15, 1960, a decree of divorce was entered in favor of defendant on his counterclaim. On June 24, 1960, plaintiff moved to vacate the decree, and on June 27, 1960, after the decree was modified in a minor respect, plaintiff's motion was overruled. Plaintiff did not seek leave to file separate and full answers to all the interrogatories, not did she ask to reinstate her pleadings or to vacate the default order; neither did she seek other relief from the trial court from the consequences of the orders entered on May 5 and May 9, 1960.

The question presented is whether the court properly found that plaintiff acted unreasonable in refusing to answer defendant's interrogatories, and thus to determine whether it properly exercised its discretionary power in striking plaintiff's pleadings because of her refusal to comply with the rules and the orders of the court with respect thereto. In Coutrakon v. Distenfield, 1959, 21 Ill.App.2d 146, at page 152, 157 N.E.2d 555, at page 558, the court had occasion to consider rules 19 through 19-10 and rule 19-12 of the Illinois Supreme Court, and characterized them as 'a comprehensive set of rules designed to provide an effective and broad discovery deposition practice for Illinois.' Continuing, it said (at pages 152-153, 157 N.E.2d at page 558): 'Joint committee comments indicate they were patterned after comparable Federal Rules of Civil Procedure. They should be so construed as to secure a just, speedy and inexpensive determination of civil actions. They are designed to displace what has been called the 'sporting' concept of a law action which all to often characterized the former practice. They inaugurated a permanent open season on facts. They are designed to insure that the outcome of litigation shall depend on its merits in the light of all available facts rather than on the craftiness of the parties or guile of counsel. And, while the discovery is intended to be broad and complete, the rules provide certain safeguards which are available to a party if it is feared that the discovery transcends the basic purpose of the rules. The sanctions provided in Rule 19-12, which a court in its discretion may impose, are in and of the policy which is an integral part of our present judicial system--that of affording the fullest opportunity for exploration of an opponent's case prior to trial.'

In order to effectuate the purpose of the rules, they were stated with particularity. The interrogatories 'shall be answered separately and fully * * *'; a party receiving interrogatories is required to answer them within fifteen days after service, unless the court, on motion and notice and for good cause shown, extends or shortens the time. Rule 19-11(2). If the party receiving the interrogatories objects to answering them, he must, within ten days after receipt thereof, 'serve written objections thereto together with a notice of motion for hearing of the objections.' Rule 19-11(3). Upon written application, the party receiving the interrogatories may seek relief from the court 'against oppression or unreasonable annoyance, expense or embarrassment' by reason of the information sought in the interrogatories. Rule 19-11(5). The Joint Committee Comments read (S.H.A. ch. 110, § 101.19-12 (1956)): 'A major deficiency in the former discovery practice was the absence of effective enforcement procedures, and remedies to forestall or punish abuses and open interference with the orderly functioning of the discovery rules.' To remedy the deficiency, a new rule was created (Rule 19-12); presently (subsection (3)) 'if a party * * * unreasonably refuses to comply with any provision' of the rules for discovery 'or fails to comply with any order entered under said rules, the court may, on motion, in addition to remedies elsewhere specifically provided, order one or more of the following, as may be appropriate: * * * that all or any part of his pleadings be stricken and judgment rendered on the remaining pleadings in the case; * * *.' The exercise of that...