Smith v. Saum

• Decision Date: 11 December 1944
• Docket Number: Gen. No. 43117.
• Citation: 58 N.E.2d 248,324 Ill.App. 299
• Parties: SMITH v. SAUM.
• Court: United States Appellate Court of Illinois

324 Ill.App. 299

58 N.E.2d 248

SMITH

v.SAUM.

Gen. No. 43117.

Appellate Court of Illinois, First District, First Division.

Dec. 11, 1944.

Appeal from Superior Court, Cook County; John A. Sbarbaro, Judge.

Action by Robert Smith, by Marion Barrett, his next friend, against Gail Saum, also known as Gail Smith, to annul a marriage. From a decree dismissing the action, and from an order dircting that plaintiff pay a certain sum as court costs, appeal expenses and attorney's fees to defend plaintiff's appeal, plaintiff appeals.

Decree affirmed and order, as modified, affirmed.

Harry G. Johnson, of Chicago, for appellant.

Walter B. Prendergast and C. P. R. Macaulay, both of Chicago, for appellee.

O'CONNOR, Justice.

November 26, 1943, plaintiff, by his next friend, filed his complaint in chancery praying that an alleged marriage entered into between him and defendant be declared null and void. Defendant filed a motion to dismiss the complaint and on February 15, 1944, an order was entered sustaining the motion, the complaint was stricken, plaintiff elected to stand by his complaint, the suit was dismissed for want of equity and on March 10, he filed his notice of appeal.

March 14, defendant filed her verified petition in which she set up that plaintiff was prosecuting an appeal to this court having filed his notice of appeal; that she had no funds to defend the appeal, was wholly destitute and dependent on the charity of her friends and relatives, expected she would give birth to a child in the near future, and prayed that an order be entered allowing her attorneys' fees and costs in defending the appeal. Plaintiff moved to strike the petition on the ground that the court had lost jurisdiction since plaintiff had filed his notice of appeal. March 27 the court entered an order in which it was recited that defendant had filed her petition ‘for attorney's and court costs to defend the Appeal.’ That plaintiff had filed a motion to strike which the court overruled and it was further ordered that plaintiff pay to defendant $325 ‘as Court costs, Appeal expenses and attorney's fees to defend plaintiff's Appeal.’ From this order defendant filed a notice of appeal.

The complaint filed by plaintiff by his next friend, praying that the marriage be decreed null and void, set up that plaintiff was 18 years and defendant 19 years of age. That he was a Gunner's Mate Third Class, United States Navy; that while on leave of absence he was visiting his aunt, his next friend, with whom he made his home when he was not in the naval service; that on November 22, 1943, plaintiff was arrested on the complaint of defendant charging him with being the father of her unborn child; that he was placed under arrest, taken to the police station and there delivered into the custody of the ‘Shore Patrol of the United States Navy,’ was taken to the Naval Armory at the foot of Randolph street, Chicago, where he was confined until the next morning without any opportunity to consult an attorney as to his rights; that on the following morning the Petty Naval Officer took him to the Municipal Court of Chicago, where a bastardy charge against him was pending and he appeared before Judge Kula of that court; that plaintiff remonstrated with the Petty Officer in whose custody he was, that he was not and could not be the father of the unborn child as charged; that upon arrival at the court room of Judge Kula, plaintiff's aunt, Marion Barrett, his next friend in the instant proceeding, sought to consult with him about the matter but was not allowed to do so by the officer who had charge of him, that when the case was called for hearing the Petty Officer in whose custody he was, told the court without consultation with plaintiff that plaintiff was willing to marry defendant if the proceedings were dismissed. That thereupon the proceedings were dismissed and he was released by the Petty Officer to a policeman who took plaintiff, defendant, defendant's mother, defendant's step-father and plaintiff's aunt, Marion Barrett, in a squad car to the License Bureau in the County Building where application was made for a marriage license, but because of his tender years it was necessary for a guardian to be appointed for him to consent to the issuance of the license. Thereupon he was taken by the officer to the office of the Public Guardian where the proceeding was had before the Acting Probate Judge and a guardian appointed for him. The parties then returned to the marriage license office where a license was obtained. The parties then when to the Acting Probate Judge where the marriage ceremony was performed; that after the ceremony defendant and her relatives left and plaintiff returned to the home of his aunt, Mrs. Barrett; that he was immature and inexperienced and had no opportunity to consult with counsel, friends or relatives to ascertain what his rights were; that by reason of ‘fear, intimidation, threats and representations made to him he was induced to enter into said purported marriage; that he did not freely and voluntarily consent to marry defendant but did so because he thought the Naval Petty Officer had authority to compel him to do so; that the marriage was never consummated and that he had never lived or cohabited with defendant since the ceremony; that immediately after the marriage he sought advice from the Soldiers' and Sailors' Service Counsel and was referred to the Chicago Bar Association.

It was further averred that plaintiff was not and could not be the father of the unborn child and defendant well knew that the charge she made against him in the Municipal court was false and untrue; ‘That in truth and in...