Vayette v. MyersVayette v. Myers
delivered the opinion of the court:
Clаrence 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 tеrm, 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 thе 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 co-respondent named in the bill, and a letter from the plaintiff in error tо 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 re-open the cаuse 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 cоmplainant 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 cause 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 commence-' ment 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 Oсtober, 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 tо answer. Clarence 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 tо 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 casе 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 becаuse 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, sec. 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 Nat. Bank,
Numerous cases have been decided in other jurisdictions touching questions similar to the one raised here as to the sufficiency of the entry of appearance. In Epрs & Leabow v. Buckmaster,
In Harrison v. Morton,
Bowman v. Bowman,
In Snell v. Stanley,
Plaintiff in error contends that because the entry of appearance, by its last paragraph, states that “if the court shall deem the proof sufficient, may enter a decree on the bill therein in favor of the complainant,” this amounts to collusion. While it is universally the rule that an agreement not to defend a divorce case is void as against public policy and vitiates a decree entered in pursuance of such agreement, there is no evidence in this case tending to establish that she in any way agreed that a divorce decree should be entered. All the proof on her part tends to show that she did not want the complainant in the cause tо secure a divorce and that she sought to avoid the same. Furthermore, this contention is inconsistent with her motion to set aside the decree for want of notice. The language in the last paragraph of the entry of appearance cannot be construed as an agreement that a divorce should be had.
It is also contended that the evidence in the case is not sufficient to warrant the decree, and that the court erred in not vacating the samе on the motion of plaintiff in error in March, 1920. This contention cannot be sustained. There is abundant proof in the record of adultery on the part of the plaintiff in error and Arthur W. Lowther. The complainant testified that she admitted such infidelity to him; that shе registered at the National Hotel, in Peoria, Illinois, and occupied a room with Lowther under the name of Mr. and Mrs. Morgan; that Lowther frequently visited her at her home in Dwight during her husband’s absence. Mrs. Lowther, wife of the co-respondent, testified that she at different times on Sunday nights followed her husband after church services and saw him go into the .house of the plaintiff in error; that on one occasion, on her being out for the evening, she returned and found the plaintiff in error in her housé; that she found gray hair-pins upon her bed; that plaintiff in error’s hair is gray; that she after-wards accused her husband of having intimate relations with plaintiff in error, which he admitted and told her it was none of her business. Moren Cooper Snively, daughter of Mrs. Lowther and the co-respondent, also testified to having seen Lowther go to the residence of plaintiff in error. Plaintiff in error’s confession stated that she was a member of the choir in the church of which Lowther was the pastor; that their relations became intimаte, and for more than a year he visited her in her apartments when she was alone and that they had illicit relations at these times.
The decree is amply sustained by the evidence. We find no error in the record in this case to warrant a reversal of the decree, and the same is affirmed.
Decree affirmed.