Steffens v. Steffens

• Decision Date: 18 January 1951
• Docket Number: No. 31398,31398
• Citation: 96 N.E.2d 458,408 Ill. 150
• Parties: STEFFENS v. STEFFENS.
• Court: Illinois Supreme Court

Page 458

96 N.E.2d 458

408 Ill. 150

STEFFENS v. STEFFENS.

No. 31398.

Supreme Court of Illinois.

Jan. 18, 1951.

Cassels, Potter & Bentley, Chicago (Richard H. Merrick, Chicago and Francis C. Palmer, Binghamton, of counsel), for appellant.

Paul F. Koenig, Chicago, for appellee.

Edward R. Adams, Chicago, amicus curiae.

FULTON, Justice.

A decree of divorce was entered, in a suit between the parties herein, by the superior court of Cook County on July 9, 1946. On May 7, 1948, the appellant, Bertha M. Steffens, filed a petition in said court to vacate the decree on the ground that her husband, George H. Steffens, the plaintiff in that suit, was not a resident of Cook County and the State of Illinois for a period of one year prior to the filing of his complaint therein, and that the plaintiff and his witnesses falsely testified thereto. On motion the trial court struck the petition and the Appellate Court affirmed such action, 338 Ill.App. 599, 88 N.E.2d 502. Petition for leave to appeal was granted by this court.

The record in the case discloses that the complaint of appellee was filed October 1, 1945, alleging residence in Cook County, Illinois, for more than one year preceding the filing of the suit, and charging desertion on the part of the appellant. At the time of the alleged desertion, the parties were living in Binghamton, New York. The appellant was served by publication. She filed a written appearance through a firm of Chicago attorneys of her own choosing and answered the complaint neither admitting nor denying the residence of the appellee, but demanding strict proof of the material allegations. The answer also contained affirmative charges of adultery on the part of appellee. Amendments were filed both to the complaint and the answer and the cause came on for hearing in the superior court. The appellant did not appear personally or by attorney at the hearing, although attorney for appellant admits notice was served upon him by appellee's attorneys to have the cause set for trial.

Proofs were heard on the residential requirements and upon the cause for divorce. On July 9, 1946, a decree of divorce was awarded to appellee on the grounds of desertion. It recited that the court had heard the testimony of witnesses taken in open court and was fully advised in the premises; that it had jurisdiction of the parties and of the subject matter; that the appellee was, and since prior to the filing of the complaint had been, an actual resident of Cook County, and had been a resident of the State of Illinois for over one year next preceding the filing of the complaint. September 23, 1946, the appellant's then attorney, without her knowledge, filed a verified motion to vacate the decree, setting up his illness and inability to attend the trial. This motion was denied. The petition here involved, verified by appellant and asking to vacate the decree, was filed on May 7, 1948. She alleged that she did not learn of the decree against her until April 3, 1948; that she was a resident of the city of Binghamton, New York, and resided with the appellee until the year 1945, when he left her; that he was not a resident of the county of Cook and State of Illinois for one year prior to October 1, 1945; that she was not guilty of desertion or of any of the other charges in the complaint; and that the charge of residence and the testimony concerning it were false, fraudulent and perjured. A motion to strike this petition was allowed.

The question involved in the case concerns the validity of the divorce decree entered by the superior court of Cook County, which is collaterally attacked by facts and evidence dehors the record.

The appellant contends that the testimony given by the appellee and his witnesses as to residence in Illinois was false and constituted such a fraud upon the court as gave it only colorable jurisdiction and was sufficient to invalidate the decree. She maintains that a decree so procured can be set aside on motion at any time for want of jurisdiction.

This court has announced in many cases that in case of a collateral attack on a judgment or decree all presumptions are in favor of the validity of the judgment or decree attacked, and want of jurisdiction to enter the same must appear on the face of the record to furnish the basis for such attack. Prewitt v. Prewitt, 397 Ill. 178, 73 N.E.2d 312; Parsons v. Lurie, 400 Ill. 498, 81 N.E.2d 182; Cullen v. Stevens, 389 Ill. 35, 58 N.E.2d 456.

Much reliance is placed by appellant upon the case of In re Goldberg's Estate, 288 Ill.App. 203, 5 N.E.2d 863, where leave to appeal was denied by this court and certiorari denied by the United States Supreme Court, 302 U.S. 693, 58 S.Ct. 12, 82 L.Ed. 535. The language in that opinion appears to be somewhat at variance with the cases above cited, but the denial of a leave to appeal...