Robinson v. Robinson

• Decision Date: 18 November 1946
• Docket Number: Gen. No. 43891.
• Parties: ROBINSON v. ROBINSON et ux.
• Court: United States Appellate Court of Illinois

329 Ill.App. 515

69 N.E.2d 904

ROBINSON

v.ROBINSON et ux.

Gen. No. 43891.

Appellate Court of Illinois, First District, First Division.

Nov. 18, 1946.

Appeal from Municipal Court of Chicago; Edward P. Luczak, Judge.

Action of forcible detainer by Kid M. Robinson against Milton Robinson and Juanita Robinson, his wife, to recover possession of an apartment. From an order overruling last named defendant's motion to vacate the judgment in favor of the plaintiff, the last-named defendant appeals.

Reversed and remanded with directions.Brown, Brown, Cyrus & Greene, of Chicago (Marcus A. Mahone and William H. Brown, both of Chicago, of counsel), for appellant.

No appearance for appellee.

O'CONNOR, Presiding Justice.

March 11, 1946, Kid M. Robinson, brought an action of forcible detainer against Milton Robinson and Juanita Robinson to recover possession of apartment No. 201, which was located on the second floor of the premises known as No. 2829 Calumet avenue, Chicago. The verified complaint alleged that defendants unlawfully withheld possession of the apartment. Summons issued commanding the bailiff of the Municipal court to summon Milton Robinson and Juanita Robinson, and the bailiff's return recites that he served defendant, Milton Robinson, at his usual place of abode, by delivering a copy thereof with a praecipe and statement of claim to plaintiff, Kid Robinson, a person of his (Milton's) family, and father of defendant, Milton Robinson. There is no return by the bailiff as to what was done towards serving the other defendant, Juanita Robinson. March 29, 1946, judgment was entered which recites that the cause came on for hearing before the court without a jury; evidence was heard and there was a finding that defendant, Milton Robinson, was guilty of unlawfully withholding possession of the premises from plaintiff. Judgment was entered on the finding and the writ of restitution stayed for 10 days.

April 15, 1946, defendant Juanita Robinson, filed a petition to vacate the judgment setting up that writ of restitution was issued out of the Municipal court on April 10, and served on her about 6 o'clock of the evening of that day by the bailiff, and that the next morning the bailiff evicted her from the premises. That plaintiff and defendant, Milton, are father and son, and Juanita, the wife of the son. That no summons was ever served on her. That a demand for immediate possession was served on her March 8, 1946, but she was never served with summons.

The petition further avers that defendant, Milton, her husband, was taken into the United States Army where he remained for about 3 and one-half years prior to his discharge December 10, 1945, when he returned to her and the apartment, and that during the time he was in the Army she was in exclusive possession of the apartment. That plaintiff well knew and recognized this fact and accepted the rent from her and receipted to her for it; that on December 25, 1945, Milton left her and the apartment and moved into the apartment which his father occupied on the first floor of the same building and has since continued to live there; that she paid the rent to plaintiff for the month of December, 1945, which was all the rent due up to January 1, 1946, after which date she tendered the rent to plaintiff but he refused to accept it.

April 22, 1946, plaintiff filed his verified answer to the petition in which he admits that defendant, Milton, his son, was in the Army as alleged but denied that Juanita, the petitioner, was in the exclusive possession of the apartment but that she held possession as the wife and agent of Milton, to whom he had rented the apartment in December 1941, as a month to month tenant. That Milton paid the rent until he was inducted into the Army May 3, 1943, and thereafter the rent was paid by Milton to his wife the petitioner, and that she paid the rent to plaintiff, as Milton's agent. That he gave receipts for the rent to Juanita because Milton was in the Army. That Milton was discharged from the Army and returned to the apartment December 10, and there lived with his wife until December 25, 1945, at which time he told plaintiff, his father, that ‘he would no longer be responsible for the rent and that he was giving up the apartment’ because of trouble between himself and his wife. That she was unfaithful to him.

April 24, 1946, there was a hearing before the court on the matters involved in the petition and answer. The petitioner, Juanita Robinson, and the plaintiff, Kid M. Robinson, each testified and there was some other evidence introduced. June 12, 1946, an order was entered overruling defendant, Juanita Robinson's motion to vacate the judgment from which she prosecutes this appeal.

The petitioner testified that she occupied the apartment with her husband from 1941 until about May, 1943, when he was taken into the United States Army; that he returned December 10, 1945, and they lived in the apartment until December 25, 1945, when he left her and went to live with his father and mother in their apartment downstairs in the same building; that she continued to live in the apartment until she was evicted April 11, 1946. She also offered in evidence receipts running to her from plaintiff for the rent, $22 a month. Further evidence tends to support the allegations of her petition.

Plaintiff, Kid M. Robinson, testified on the hearing that he did not rent the apartment to Juanita, and further testified as to several of the facts alleged in his answer to the petition.

No brief has been filed on behalf of Kid M. Robinson.

Forcible detainer is a special statutory proceeding, summary in its nature, and in derogation of the common law, and the statute must be strictly followed. Wells v. Hogan, Breese, 1 Ill. 337;Wentworth v. Sankstone, 233 Ill.App. 48;City of Chicago v. Chicago Steamship Lines, Inc., 328 Ill. 309, 159 N.E. 301.

In Rehm v. Halverson, 197 Ill. 378, 64 N.E. 388, 390, it was held that if the original lessee sub-lets a portion of the premises but subsequently surrenders his lease and possession and all claims to the premises, the lessor may bring forcible detainer against the sub-tenant without making the lessee a party, and that since the landlord brought forcible detainer against the original lessee without making the sub-lessee a party, the judgment entered in favor of the plaintiff against the lessee was a nullity as to the sub-tenant. The court there said (p. 383): ‘The refusal of the instruction was not error, inasmuch as it ignores the fact shown by the evidence that appellee, the original lessor of Spano, had accepted from the latter a surrender of the lease before the forcible detainer suit was begun. It is not necessary to consider to what extent, if at all, Zaccone [the sub-lessee] was deprived by such surrender of any rights, as between himself and Spano [the lessee]. It is sufficient that appellee [lessor] found Zaccone in adverse possession of the premises. Appellee had the right to bring the forcible detainer proceedings against him alone. * * * Spano no longer held the premises against appellee, inasmuch as he had surrendered his lease, and therefore it was not necessary to make him a party defendant to the forcible detainer proceedings. A judgment of restitution against Spano would have been unavailing, inasmuch as Zaccone was the only person who held the premises against the appellee; and, in order to enable the appellee to repossess himself of the premises, it was only necessary to have a judgment of restitution against Zaccone.'

This same rule of law was announced and followed by this court in Mills v. Reiger, 328 Ill.App. 230, 65 N.E.2d 628.

In the instant case plaintiff made Juanita one of the defendants to the complaint which was sworn to, which charged that the two defendants, herself and her husband, wrongfully withheld possession of the premises from plaintiff. Summons was issued against both of them but no attempt was made to serve her, but Milton was served by the bailiff, by leaving a copy of the summons with his father with whom he was then living. And the suit of the father against the son was heard without notice to defendant, Juanita-a mere travesty and subterfuge-‘The whole proceeding was a wrong without even the color of law.’ Leindecker v. Waldron, 52 Ill. 283;Hemmer v. Wolfer, 124 Ill. 435, 16 N.E. 652;Heppe v. Szczepanski, 209 Ill. 88, 70 N.E. 737,101 Am.St.Rep. 221;-of no effect not only because Juanita was made a party defendant, as stated, but alson on the ground that defendant, Milton, had vacated the premises and was then living with his father and that Milton told his father ‘he would no longer be responsible for...