Trossman v. Trossman

• Decision Date: 29 February 1960
• Docket Number: Gen. No. 47799
• Citation: 165 N.E.2d 368,80 A.L.R.2d 933,24 Ill.App.2d 521
• Parties: , 80 A.L.R.2d 933 Sam TROSSMAN, Appellant, v. Frances D. TROSSMAN, Appellee.
• Court: United States Appellate Court of Illinois

Page 368

165 N.E.2d 368

24 Ill.App.2d 521, 80 A.L.R.2d 933

Sam TROSSMAN, Appellant, v. Frances D. TROSSMAN, Appellee.

Gen. No. 47799.

Appellate Court of Illinois, First District, First Division.

Feb. 29, 1960.

Ruskin & Rosenbaum, Chicago, for appellant.

Friedman, Friedman, Teed & Armstrong and Lawrence S. Adler, Chicago, for appellee, Sol R. Friedman, Stephen Friedman Lawrence S. Adler, Chicago, of counsel.

McCORMICK, Justice.

The questions presented to this court by this appeal are whether an action for a declaratory judgment will lie during the lifetime of the parties to declare valid an antenuptial agreement and whether the complaint presents an actual and justiciable controversy.

The complaint in the instant action averred that the parties, Sam Trossman (hereafter referred to as plaintiff) and Frances Trossman (hereafter referred to as defendant), are husband and wife; that both the plaintiff and the defendant had been married before and had children; that no children were born of the present marriage; that prior to the marriage both plaintiff and defendant had disclosed to each other the real estate and property of which they were possessed; that at the time of the marriage the defendant had sufficient means and resources to support herself; and that the parties entered into an antenuptial agreement, at which time both of them were represented by attorneys. By the terms of the carefully drawn antenuptial agreement it was agreed that the property rights of the parties to the contract should be and remain absolutely and forever separate and distinct as though marriage had not taken place, and that the contract should remain in full force and effect whether the marriage was terminated either by death or divorce. There was a further provision in the contract by which the parties thereto agreed they would at the request of the other execute deeds necessary to convey the property of the other and extinguish any right of dower, curtesy, homestead or inheritance in each other's estate. The complaint further avers that a case of actual controversy now exists between the parties, the defendant asserting that the agreement is invalid and of no force and effect and that she will, notwithstanding it, in the event of plaintiff's prior death, seek dower and an intestate share in the plaintiff's estate; that plaintiff's position is that the said antenuptial agreement is valid and binding upon both and that it must be observed in their lifetime and in the event of the death of either; and that it is necessary that the court render a declaratory judgment declaring the rights and other legal relations of the parties with respect to the said antenuptial agreement and the positions of the respective parties thereto with respect to the same. A copy of the antenuptial agreement was attached to the complaint.

The defendant moved to strike and dismiss the plaintiff's complaint, and in the motion set up, among other things, that the complaint failed to state a cause of action; that the controversy therein set forth is not justiciable at the present time; and that the relief prayed for therein is prior to any actual injury to the plaintiff and is founded on speculation and conjecture. The court on April 17, 1959 entered a judgment order as of March 30, 1959 finding that the controversy 'set forth in said Complaint is not justiciable at the present time and that said Complaint fails to state a cause of action for declaratory judgment.' The court dismissed the plaintiff's complaint and cause of action and ordered that the defendant go hence without day. From that judgment order this appeal is taken.

A declaratory judgment is a new concept in the law. It was unknown to the common law and is a creature of statute. Declaratory Judgment Acts have generally received a liberal construction from the courts. The beneficial effect of a remedial statute can be negated by the court's illiberal construction. As Mr. Justice Winslow said in McArthur v. Moffett, 143 Wis. 564, 128 N.W. 445, 446, 33 L.R.A., N.S., 264, in regard to an illiberal construction of the code of civil procedure: 'The cold, not to say inhuman, treatment which the infant Code received from the New York judges is matter of history.' The Illinois Declaratory Judgment Act has been given a liberal construction by our courts. Elward v. Peabody Coal Co., 9 Ill.App.2d 234, 132 N.E.2d 549; Illinois Power Co. v. Miller, 11 Ill.App.2d 296, 137 N.E.2d 78; Parkin v. Damen-Ridge Apts., Inc., 348 Ill.App. 428, 109 N.E.2d 363; Freeport Motor Casualty Co. v. Tharp, 406 Ill. 295, 94 N.E.2d 139; Jones v. Hodges, 2 Ill.App.2d 509, 119 N.E.2d 806. Such a construction facilitates the administration of justice.

The purpose of the Declaratory Judgment Act is well expressed in the Notes by Messrs. Jenner and Tone to section 57.1 of the Civil Practice Act found in the Annotated Statutes (Smith-Hurd Ill.Anno.Stat. ch. 110, § 57.1):

'The remedy is not designed to supplant existing remedies, nor afford a new choice of tribunals. It supplies a new form of relief where needed. It is designed to afford security and relief against uncertainty with a view to avoiding litigation, rather than in aid of it, and to settle and fix rights before there has been an irrevocable change of position of the parties in disregard of their respective claims of right, and thus promote peace, quiet and justice, with the end always constantly in view that one of the chief purposes is to declare rights rather than to execute then. Freeport Motor Cas. Co. v. Tharp, 406 Ill. 295, 94 N.E.2d 139 (1950); Progressive Party v. Flynn, 400 Ill. 102, 79 N.E.2d 516 (1948); Davis v. American Foundry Equip Co., C.C.A.Ind., 94 F.2d 441 * * *. As stated by the court in Sheldon v. Powell, 99 Fla. 782, 128 So. 258 (1930) the remedy is one to be employed in the interests of preventative justice and its scope should be kept wide and liberal, and not restricted by technicalities.'

And as was said by Mr. Justice Murphy in Central Ice Cream Co. v. Universal Leaseway System, Inc., 20 Ill.App.2d 145, 155 N.E.2d 324:

'We understand that the scope of the declaratory judgment remedy should be kept wide and liberal and not restricted by technicalities. The thing of importance is the right and duty of the courts to grant declaratory relief where, in the interest of the proper administration of justice, it ought to be granted, regardless of how the particular action in which the declaratory relief sought may be classified. This is one of the advantages of the procedure.'

The particular contention before us is a matter of first impression in this State. The trial court dismissed the complaint and based its conclusion on the ground that the complaint did not set up an actual and justiciable controversy as required under the Act.

It has been held that in order for the court to enter a declaratory judgment there must be an actual controversy. Exchange Nat. Bank of Chicago v. County of Cook, 6 Ill.2d 419, 129 N.E.2d 1. It is also the law that since the declaratory judgment statute was not designed to supplant existing remedies declaratory relief as a general rule will not be granted for a cause of action which has already accrued which is justiciable in a well-recognized form of action. 16 I.L.P. Declaratory Judgments § 2. It would seem to be clearly apparent that if an action for declaratory judgment could only lie when some other legal remedy was available the passage of the Act would have been idle. Between Scylla and Charybdis there is a narrow but plain channel. In Exchange Nat. Bank of Chicago v. County of Cook, supra, the court says:

'The section of the Practice Act authorizing the use of declaratory judgment procedures provides, in part, as follows: '* * * the court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, * * *.' We have repeatedly held that such provision does not authorize the court to grant declarations of rights involving mere abstract propositions of law without regard to the interest of the parties, and that before a declaration of rights may be made there must be an actual controversy. Spalding v. City of Granite City, 415 Ill. 274, 113 N.E.2d 567; Saline Branch Drainage Dist. v. Urbana-Champaign Sanitary Dist., 399 Ill. 189, 77 N.E.2d 158. * * * The term 'actual controversy' is also found in the Federal Declaratory Judgment Act, (28 U.S.C.A. § 2201,) and of it the Supreme Court of the United States has said: 'The word 'actual' is one of emphasis rather than of definition. * * * A 'controversy' in this sense must be one that is appropriate for judicial determination. * * * A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. * * * The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. * * * It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. * * * Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages.' Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 463, 81 L.Ed. 617, 621, 622.' [6 Ill.2d 419, 129 N.E.2d 3.]

Again referring to the Historical Notes to Section 57.1 of the Practice Act in the Annotated Statutes, it is said:

'The remedy was by no means unusual or extraordinary or unheard of either in Illinois or in other jurisdictions...