People ex rel. Bradley v. McAuliffe

• Decision Date: 24 August 1960
• Docket Number: No. 36755,36755
• Citation: 179 N.E.2d 616,24 Ill.2d 75
• Parties: The PEOPLE ex rel. Eugene BRADLEY, Petitioner, v. Robert E. McAULIFFE, Judge of the Village Court of Maywood, Respondent. . Jan, 23, 1962. R. W. Harris, Marion (Fitzpatrick, Postilion, Zegiel & Heinemann, Peter Fitzpatrick, and Michael H. Postilion, Chicago, of counsel), for petitioner. Kitsos & Kitsos, Chicago (Nicholas T. Kitsos and Hermes C. Kitsos, Chicago, of counsel), for respondent. HERSHEY, Chief Justice. Petitioner, Eugene Bradley, by leave of court filed a petition for mandamus to compel the judgme of the village court of Maywood to expunge from the records of that court a certain order purporting to vacate a decree of the circuit court of Williamson County and also to require said judge to dismiss a certain divorce proceeding now pending in the village court of Maywood. Respondent has filed a motion to dismiss the petition for mandamus. The essential facts, as disclosed by the pleadings, are as follows: Eugence Bradley, the present petitioner, filed a praecipe for divorce in the circuit court of Williamson County on
• Court: Illinois Supreme Court

Page 616

179 N.E.2d 616

24 Ill.2d 75

The PEOPLE ex rel. Eugene BRADLEY, Petitioner, v. Robert E. McAULIFFE, Judge of the Village Court of Maywood,

Respondent.

No. 36755.

Supreme Court of Illinois.

Jan, 23, 1962.

R. W. Harris, Marion (Fitzpatrick, Postilion, Zegiel & Heinemann, Peter Fitzpatrick, and Michael H. Postilion, Chicago, of counsel), for petitioner.

Kitsos & Kitsos, Chicago (Nicholas T. Kitsos and Hermes C. Kitsos, Chicago, of counsel), for respondent.

HERSHEY, Chief Justice.

Petitioner, Eugene Bradley, by leave of court filed a petition for mandamus to compel the judgme of the village court of Maywood to expunge from the records of that court a certain order purporting to vacate a decree of the circuit court of Williamson County and also to require said judge to dismiss a certain divorce proceeding now pending in the village court of Maywood. Respondent has filed a motion to dismiss the petition for mandamus.

The essential facts, as disclosed by the pleadings, are as follows: Eugence Bradley, the present petitioner, filed a praecipe for divorce in the circuit court of Williamson County on August 24, 1960. Summons was issued by the clerk of the circuit court of Williamson County and was personally served upon the wife, Linda Bradley, on September 10, 1960, by the sheriff of Cook County. On November 14, 1960, in the same action, Eugene Bradley filed a complaint for divorce, alleging that he was a resident of Williamson County and had resided in the State of Illinois for more than one year preceding the filing of his praecipe, and also alleging grounds for divorce and asking custody of their minor child.

Linda Bradley filed no answer and entered no appearance in the circuit court of Williamson County. After hearing testimony in support of the allegations of the complaint, the circuit court of Williamson County entered a decree on December 20, 1960, granting a divorce and awarding the custody of the child to Eugene Bradley. The decree specifically found the residence of Eugene Bradley to be in Williamson County.

Meanwhile, on December 7, 1960, after the service of summons and the filing of the complaint in the Williamson County case, but before the hearing and decree, Linda Bradley filed a praecipe for divorce in the village court of Maywood. Thereafter, in the same court, she filed a petition asking the village court to declare the divrce decree entered by the circuit court of Williamson County void. In this petition she alleged that Eugene Bradley was a resident of Cook County and that the Williamson County decree was the result of perjured testimony.

On December 23, 1960, Eugene Bradley, who had been personally served with process on December 9, appeared in the proceeding in the village court of Maywood and moved to dismiss the cause on the ground that the parties had been divorced by decree of the circuit court of Williamson County and that the cause of action was barred by the decree. In support of this motion, he filed a certified copy of the decree of the circuit court of Williamson County. On February 2, 1961, the village court of Maywood denied the motion to dismiss. Thereupon, Eugene Bradley filed an answer to Linda Bradley's petition to vacate and set aside the decree of the circuit court of Williamson County, alleging that he was at all times a resident of Williamson County. On March 16, 1961, Eugene Bradley moved in the village court of Maywood for the entry of a summary judgment in his favor for the reason that the circuit court of Williamson County had entered a decree specifically finding that he was a resident of Williamson County, and furnishing affidavits in support of his motion. Linda Bradley filed a counteraffidavit, alleging that Eugene Bradley was a resident of Cook County. The court heard evidence on the question of Eugene Bradley's residence and refused to dismiss Linda Bradley's petition or to enter a summary judgment. Instead, on July 28, 1961, the court entered an order vacating and setting aside the decree of the circuit court of Williamson County and granting Linda Bradley leave to file a complaint for divorce. On the same day, July 28, 1961, Eugene Bradley also moved the village court to expunge the order entered on February 2, 1961, denying his motion to dismiss, and to enter in lieu thereof an order dismissing the action pending in the village court of Maywood The court denied this motion, and entered the order previously referred to, which, by its terms, vacates and sets aside the decree of the circuit court of Williamson County. Thereupon relator commenced this original proceeding for mandamus in this court.

The extraordinary writ of mandamus is not issued as a matter of right, but only in the sound discretion of this court. (People ex rel. Norwegian-Amercican Hospital, Inc. v. Sandusky, 21 Ill.2d 296, 299-300, 171 N.E.2d 640.) It has been recognized as an appropriate remedy to correct a ruling made by a court which has erroneously assumed jurisdiction it did not possess. (People ex rel. Woll v. Graber, 394 Ill. 362, 68 N.E.2d 750; People ex rel. Benefit Association of Railway Employees v. Miner, 387 Ill. 393, 56 N.E.2d 353; People ex rel. Courtney v. Thompson, 358 Ill. 81, 92, 192 N.E. 693.) Specifically, mandamus has been used to purge a trial court's records of a void order which deprived a petitioner of rights under a judgment. (People ex rel. Waber v. Wells, 255 Ill. 450, 99 N.E. 606.) On the other hand this extraordinary writ is not to be regarded as a substitute for the ordinary channels of appeal and writ of error, and will not generally lie to correct mere judicial error in matters that the trial court had jurisdiction to decide, or to control the exercise of judicial discretion. People ex rel. Barrett v. Shurtleff, 353 Ill. 248, 187 N.E. 271; People ex rel. Hoagland v. Streeper, 12 Ill.2d 204, 145 N.E.2d 625.

Regardless of the question of whether the village court of Maywood was required to recognize the Williamson County decree as a bar to the divorce action, it is obvious that the Maywood court was without jurisdiction to vacate and set aside the decree of the circuit court of Williamson County. It is clear, therefore, that in purporting to vacate and set aside the Williamson County decree, the respondent acted beyond his jurisdiction, and that leave to file the petition for mandamus should be allowed and a writ of mandamus issued directing respondent to expunge at least that part of the order which purports to vacate and set aside the decree of the Williamson County circuit Court.

The petitioner, however, asks us to do more than direct the village judge to expunge the order purportxing to vacate the Williamson County decree. It asks also that we require him to dismiss the divorce proceedings now pending in his court. The question of whether this aspect of the petition presents a proper case for mandamus poses a somewhat more difficult problem. While respondent had no jurisdiction to vacate the order of the circuit court of Williamson County, he did have jurisdiction to rule upon the motion to dismiss the divorce proceeding in his own court. He was, in fact, required to fule upon it, and did so rule by denying the motion to dismiss. Thus it could be argued that, even if the made the wrong ruling, he did no more than commit...