Saghin v. Romash
| Decision Date | 11 May 1970 |
| Docket Number | Gen. No. 69--157 |
| Parties | Alexander SAGHIN and Maria Saghin, Husband and wife, Plaintiffs-Appellants, v. Alexander ROMASH and Elizabeth Romash, husband and wife, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Alexander Saghin, for appellants.
Dreyer, Foote & Streit, Aurora, for appellees.
This appeal arises from an action for specific performance brought upon a two count amended complaint on behalf of the plaintiffs against the defendants. Only count I of the amended complaint is before this Court.
The amended complaint alleges that, prior to 1964, the plaintiffs lived in the Country of Rumania; that at least once a year, from 1950 until 1964, the defendant-husband (hereinafter referred to as defendant) wrote letters to the plaintiffs promising them that if they immigrated to the United States of America he would support plaintiffs and give them all his property, reserving for himself only a right to live on said property; that on or about the 9th day of May, 1953, the defendant, prior to his present marriage, entered into a certain agreement whereby he was to retain all his property free from any claim or interest of the defendant-wife after their marriage; that on May 26, 1953, the defendant made an offer to the plaintiffs that if they would forego their residence in Rumania and come to the United States of America, he would convey and deliver to the plaintiffs all his right, title and interest in and to assets owned by him, and later acquired by him prior to their arrival in the United States of America; that the offer is reflected by defendant's hand-written letter in the Rumanian language, an English translation being attached to the amended complaint; that the defendant had made other offers in writing which were confiscated or destroyed by the Rumanian officials.
It was further alleged that as early as the year 1952, the plaintiffs, in reliance upon the offers, petitioned the appropriate Rumanian authorities for permission to immigrate to the United States of America, did come to the United States of America in June of 1964 and made a demand upon the defendant for a conveyance of the property; that the plaintiffs, as a condition of their immigration to the United States of America, gave up all claim to a pension from the Rumanian government and other legal rights which they had; that the plaintiffs relied upon the offers of the defendant, but the defendant refused to convey the property; that the defendant had breached the contract in that he conveyed one parcel of real estate to a third party in July of 1965, revoked his pre-nuptial agreement on January 21, 1966, and refuses to transfer and set over to the plaintiffs all of his property as agreed.
The amended complaint, count I, continues that the defendant has thus breached the contract, that both defendants have collected income and profits from the property which is difficult to ascertain, that the plaintiffs have fully performed and have no adequate remedy at law. The count seeks an accounting of all profits and income, a decree of specific performance, and a judgment against the defendants for damages.
The defendants filed a motion to dismiss setting out a post-nuptial agreement executed by them on January 21, 1966, revoking their pre-nuptial agreement of May 9, 1953. The court denied this motion to dismiss.
Defendants then filed a motion for summary judgment and attached thereto excerpts from letters received by them from the plaintiffs. These excerpts were translations from the Rumanian to the English language and were verified by the defendant. The court granted the motion for summary judgment and, thereafter, the plaintiffs filed a motion for rehearing, pro se. The motion for rehearing is supported by an unsworn ten-page, single spaced, legal-length statement, with scant margins. The document purports to quote from other letters written by the plaintiffs to the defendants and contains arguments and observations as to the intentions of the writers. Eight days later, a similar document consisting of eight pages and entitled, 'Addition to Plaintiffs' Motion for a Rehearing, Retrial, Vacate', was filed by the plaintiffs. The disposition of this motion is not ascertainable from the record or excerpts; however, on May 20, 1969, the plaintiffs filed a notice of appeal seeking to set aside the judgment of April 23, 1969, allowing the defendants' motion for summary judgment as to count I.
Count II, an action against the same parties for breach of an alleged contract to support the plaintiffs while they reside in this country, is held in abatement during the pendency of this appeal.
Plaintiffs complain that the court erred in granting the motion for summary judgment because sworn or certified copies of all papers, upon which the affiant relied, were not attached to the motion, nor did the affidavit attached show that the defendant, if sworn as a witness, would be competent to testify to the contents of the motion and affidavit.
The excerpts of letters attached to the motion for summary judgment purport to be letters from the plaintiffs to the defendants. This fact is not denied by the plaintiffs and, in their motion to reconsider, further portions of the letters are set out. The letter of the defendant, upon which the plaintiffs rely,...
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