Vayette v. Myers

• Decision Date: 04 October 1922
• Docket Number: No. 14452.,14452.
• Citation: 136 N.E. 467,303 Ill. 562
• Parties: VAYETTE et al. v. MYERS.
• Court: Illinois Supreme Court

303 Ill. 562

136 N.E. 467

VAYETTE et al.

v.MYERS.

No. 14452.

Supreme Court of Illinois.

June 21, 1922.

Rehearing Denied Oct. 4, 1922.

Error to Circuit Court, Livingston County; Stevens R. Baker, Judge.

Bill for divorce by Clarence W. Myers against Addie B. Myers. Decree for complainant, who died, and his personal representatives were substituted. From a refusal to set aside the decree, defendant brings error.

Affirmed.Tuesburg, Wilson & Armstrong, of Pontiac, and Morse Ives, of Chicago, for plaintiff in error.

Arthur H. Shay, of Streator, and Lester H. Strawn, of Ottawa, for defendants in error.

STONE, J.

Clarence W. Myers, defendants in error's testate, filed his bill for divorce to the January term of the circuit court of Livingston county against the plaintiff in error. The bill was filed January 6, 1920. On the same day an entry of appearance was filed in the following language:

‘I, Addie B. Myers, defendant in the above-entitled cause, hereby enter my appearance therein and waive service of summons therein upon me, and agree that, on the filing of said bill for divorce in said cause at the January term, A. D. 1920, of said circuit court of Livingston county, Illinois, said court may proceed instanter, or at any time convenient to the court, to a hearing in said cause, and, if the court shall deem the proof sufficient, may enter a decree on the bill therein in favor of the complainant.

‘Dated at Dwight, this 5th day of January, 1920.

Addie B. Myers.'

The charge was adultery. The complainant's proof consisted of the evidence of himself, the wife, and daughter of the corespondent named in the bill, and a letter from the plaintiff in error to Myers, dated August 9, 1919, acknowledging the acts of adultery complained of in the bill. On March 20, 1920, which was on or near the last day of the January term of court, plaintiff in error filed her motion to set aside the decree and to reopen the cause for hearing of further testimony and to permit her to appear and defend the bill. Time was extended to the May term, 1920, in which to prepare and file affidavits in support of the motion, and the cause was continued until that time. It appears, however, that no such affidavits were filed, but, on May 1, 1920, plaintiff in error presented her sworn petition for permission to file an answer to the complainant's bill, which petition and answer denied in detail the acts of adultery or that the complainant conducted himself towards her as a kind and faithful husband and set up counter charges of adultery. The petition and answer also set out that the confession used in support of the decree was obtained from her in furtherance of a preconceived plan on the part of the complainant in the bill and that the allegations of fact therein stated were wholly untrue. It appears that the record stood in this condition until the January term, 1921, when, without securing a decision of the court concerning her petition to set aside the decree and to file an answer, she filed an amended motion to vacate the decree, on the ground that the court was without jurisdiction to enter it, and that she was, by the terms of the decree, deprived of her rights without due process of law, contrary to the Constitutions of this state and of the United States; alleging that the entry of appearance in the case was void and that she had not been served with summons in the cause and had no notice of the filing of the bill of complaint or the commencement of the suit until after the entry of the decree therein. In August, 1921, the court denied the amended motion filed by plaintiff in error on May 1, 1920, and in October, 1921, denied her motion to vacate and set aside the decree for want of jurisdiction. The contention of the plaintiff in error is that this was error, that the court had no jurisdiction over her, and that it was error to refuse to permit her to answer. Charles W. Myers died during the pendency of this cause, and defendants in error, as his representatives, were substituted.

The facts concerning the entry of appearance, as shown by the evidence heard on the motion to vacate the decree, were that the same was signed by plaintiff in error late in the evening of January 5, 1920, and was filed the following day, at which time the bill itself was filed. The testimony of the complainant is that he told plaintiff in error that the case was to be heard the following day, and that at the same time he delivered her a copy of the bill filed on the next day. There is no question as to the entry of appearance being signed by the plaintiff in error, and the copy of the bill filed in court on January 6 contained the indorsement:

‘I have received a true copy of this bill this 5th day of January, 1920.

‘[Signed] Addie B. Myers.’

There is no dispute as to her having signed this receipt. This testimony, according to the abstract, appears to have been offered by the plaintiff in error on the hearing on her motion to vacate the decree for want of jurisdiction. The proof, therefore, does not sustain the averment in her affidavits in support of said motion that she had no notice of the filing of the bill of complaint nor the commencement of the suit until after the entry of the decree.

It is earnestly contended by plaintiff in error that the circuit court did not have jurisdiction over her person at the time the decree was entered. The entry of appearance was in the usual form, waiving service of summons and agreeing that the cause might be filed at the January term of court and that the court might proceed at once to the hearing of the cause, and it is contended that, because no summons was issued after the bill for divorce was filed and before the entry of the decree, no notice of any kind was given to the defendant. This is a refinement of reasoning which cannot be sustained. The filing of the bill and the entry of appearance were at one and the same time. There is no showing of collusion in the entry of appearance, though plaintiff in error contends that it was done in accordance with a preconceived plan on the part of complainant. She, however, does not even contend that it was agreeable to her, but claims in her motion and affidavit that she signed the entry of appearance because she could do nothing else.

The presumption is in favor of the regularity of an entry of appearance and not against it. 4 Corpus Juris, § 36, and cases cited. In support of the contention that the entry of appearance in this case did not give the court jurisdiction, counsel for plaintiff in error cite McCormack v. First...