{ "id": 5266480, "name": "Delores S. Powers, Plaintiff-Appellant, v. Kenneth N. Powers, Defendant-Appellee", "name_abbreviation": "Powers v. Powers", "decision_date": "1964-02-04", "docket_number": "Gen. No. 49,091", "first_page": "57", "last_page": "62", "citations": [ { "type": "official", "cite": "46 Ill. App. 2d 57" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "95 NE2d 439", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "407 Ill 488", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2639159 ], "opinion_index": 0, "case_paths": [ "/ill/407/0488-01" ] }, { "cite": "124 NE2d 88", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill App2d 323", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5130804 ], "pin_cites": [ { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/4/0323-01" ] }, { "cite": "183 NE2d 887", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill App2d 305", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5260739 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/36/0305-01" ] }, { "cite": "35 NE2d 961", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "311 Ill App 312", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3381698 ], "opinion_index": 0, "case_paths": [ "/ill-app/311/0312-01" ] }, { "cite": "141 NE 743", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "310 Ill 319", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5108520 ], "opinion_index": 0, "case_paths": [ "/ill/310/0319-01" ] }, { "cite": "1 NE2d 873", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "285 Ill App 212", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3354123 ], "opinion_index": 0, "case_paths": [ "/ill-app/285/0212-01" ] }, { "cite": "66 Ill 157", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2624249 ], "opinion_index": 0, "case_paths": [ "/ill/66/0157-01" ] }, { "cite": "25 Ill 107", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 443535 ], "opinion_index": 0, "case_paths": [ "/ill/25/0107-01" ] }, { "cite": "46 NE 237", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "165 Ill 502", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3103432 ], "opinion_index": 0, "case_paths": [ "/ill/165/0502-01" ] }, { "cite": "18 Ill 65", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 438670 ], "weight": 2, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/ill/18/0065-01" ] } ], "analysis": { "cardinality": 484, "char_count": 8342, "ocr_confidence": 0.549, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15710259555672937 }, "sha256": "bc4f47b4f17265d74192c5704bb61bbeb3ba4ad41681c866ce34a7a99386a6c9", "simhash": "1:93799abf5247815a", "word_count": 1452 }, "last_updated": "2023-07-14T20:04:28.965916+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "FRIEND and BRYANT, JJ., concur." ], "parties": [ "Delores S. Powers, Plaintiff-Appellant, v. Kenneth N. Powers, Defendant-Appellee." ], "opinions": [ { "text": "MR. PRESIDING JUSTICE BURKE\ndelivered the opinion of the court.\nPlaintiff appeals from an order of the Superior Court of Cook County vacating a decree for separate maintenance in her favor by the Town Court of Cicero. The defendant was served personally in Ohio with a summons and a complaint. He did not file an appearance or answer and was defaulted. In due time he filed a special appearance accompanied by a motion to vacate the decree and to dismiss the cause for lack of jurisdiction of the subject matter or the person of defendant and in the motion also raised the defenses of the statute of limitations and condonation. On motion of plaintiff and without objection from defendant the case was transferred to the Superior Court of Cook County.\nThe parties were married on June 28, 1952, at Oak Park, Illinois. They moved to Bay Village, Ohio, where they continued cohabiting as husband and wife until June 15, 1962. Four children were horn to this union, their ages, 10, 6, 4, and 2 years. The complaint for separate maintenance was filed on August 8, 1962, in the Town Court of Cicero. Defendant was personally served with a summons and complaint in Ohio on August 13,1962. Plaintiff in her complaint charged that the defendant on a number of occasions committed acts of physical violence upon her person, and that on June 15, 1962, he physically evicted her from their marital home at Bay Village, Ohio, whence she moved to Cicero, Illinois, where she has since resided.\nBy the terms of the decree entered in the Town Court she was granted support for herself and custody and support for the four children. The defendant, on November 9, 1962, filed a \u201cspecial appearance\u201d and a motion to vacate. The decree was set aside by the Superior Court of Cook County on June 22, 1963, \u201cfor want of jurisdiction\u201d and the complaint dismissed \u201cwithout prejudice for want of jurisdiction.\u201d\nThe defendant in his motion to vacate, stated that the court did not have jurisdiction over the person of the defendant or the subject matter of the controversy. He stated that the action was not brought where either the plaintiff or the defendant resided as required under Ill Rev Stats c 68, \u00a7\u00a7 22, 23 and that the cause of action having arisen in Ohio, there can he no basis for the service of process outside of Illinois pursuant to Sec 17 of the Civil Practice Act.\nIn his motion the defendant also raised the defenses of the statute of limitations and condonation by plaintiff of the alleged physical cruelty.\nThe Supreme Court of Illinois as early as 1856 stated the rule with respect to appearances by the defendant where objection is made to the jurisdiction of the court over the person of a defendant. \u201cThere are cases where the defendant may make a quasi appearance, for the purpose of objecting to the manner in which he is brought before the court, and in fact to show that he is not legally there at all; but if ever he appears to the merits, he submits himself completely to the jurisdiction of the court, and must abide the consequences.\u201d Crull v. Keener, 18 Ill 65, 66.\nIn Nicholes v. People, 165 Ill 502, 46 NE 237, the Supreme Court said, 503, 504: \u201cA special appearance must be for the purpose of urging jurisdictional objections only, and it must be confined to a denial of jurisdiction. An appearance for any other purpose than to question the jurisdiction of the court is general.\u201d 2 Enc Pl & Pr 632; Abbott v. Semple, 25 Ill 107; McNab v. Bennett, 66 Ill 157; Crull v. Keener, 18 Ill 65. Continuing, the court added that if \u201che appears to the merits no statement that he does not will avail him, and if he makes a defense which can only be sustained by an exercise of jurisdiction, the appearance is general, whether it is in terms limited to a special purpose or not.\u201d 2 Enc of Pl & Pr 625.\nThe Appellate Court in Brandt v. St. Paul Mercury Indemnity Co., 285 Ill App 212, 1 NE2d 873, was asked to pass upon this question. A special appearance and motion were presented by the defendant asking the court to dismiss the complaint for lack of jurisdiction of the person and subject matter. The defendant gave as one of its reasons that the cause of action had expired by virtue of the statute of limitations. The defendant also filed the equivalent of a plea of res judicata. The court was thus asked to exercise its general jurisdiction in passing upon the pleas of the statute of limitations and res judicata. The court commented, 215, that this \u201caction by defendant operated itself to overrule the special appearance and to make the same the equivalent of a general appearance.\u201d See also Kelly v. Brown, 310 Ill 319, 141 NE 743.\nThe defendant in Book v. Ewbank, 311 Ill App 312, 35 NE2d 961, in his special appearance attempted to question not only the jurisdiction of the court but also to raise the defense of limitations. The court said, 320: \u201cThe rule is, that if a party wishes to question anything but the jurisdiction of the court in such a proceeding, he must limit his appearance to that purpose only. The appellant in filing his motion, not only questioned the jurisdiction of the court, but asked leave to plead to the merits of the case, and by so doing entered his appearance in the suit.\u201d\nThe well established rule in Illinois is that a defendant who makes a special appearance challenging jurisdiction of his person must limit the appearance to the jurisdictional question. If he invokes the court\u2019s power to adjudicate any defense or defenses in bar he is deemed to have submitted to the jurisdiction of the court. See Sec 20(1) Civil Practice Act and notes by Jenner and Tone.\nAs recently as July, 1962, this court had before it the situation where a former husband entered a special appearance to question the court\u2019s jurisdiction over his person to adjudicate his wife\u2019s petition for unpaid alimony and he therein also raised the defense of the statute of limitations. This court noted that by raising the defense of the statute of limitations, the defendant converted a special appearance into a general appearance and thereby submitted himself to the jurisdiction of the court. Mueller v. Mueller, 36 Ill App2d 305, 183 NE2d 887.\nThe defendant maintains that the trial court lacked jurisdiction over the subject matter of the complaint, citing Ill Rev Stats 1963, c 68, \u00a7 23. Plaintiff alleges that she resides in Cook County, Illinois and that the defendant is a nonresident. The Town Court of Cieero and the Superior Court had jurisdiction of the subject matter of the general class to which this case belongs. In O\u2019Laughlin v. O\u2019Laughlin, 4 Ill App2d 323, 327, 124 NE2d 88, we pointed out that in United Biscuit Co. v. Voss Truck Lines, Inc., 407 Ill 488, 95 NE2d 439, the court held that the requirements with respect to the place the defendant may be sued do not go to the jurisdiction of the subject matter. The defendant may insist on proper venue, or he may waive it. We conclude that the defendant by presenting the defenses of the statute of limitations and condonation submitted to the plenary jurisdiction of the court and in effect entered a general appearance.\nWe think that the Chancellor was in error in vacating the decree and dismissing the complaint for want of jurisdiction. The court had jurisdiction of the subject matter and of the persons. The defendant should be given an opportunity to have the default and the decree vacated and to file an answer and otherwise plead. The case should be tried de novo on its merits. The court will have the discretionary right to award support money, alimony, attorney\u2019s fees and litigation, expenses retroactive to the date when the original decree was entered. The order of the Superior Court is reversed and the cause is remanded to the Circuit Court with directions to enter all requisite orders consistent with these views and to give the parties a trial on the merits as to any issues joined.\nOrder reversed and cause remanded with directions.\nFRIEND and BRYANT, JJ., concur.", "type": "majority", "author": "MR. PRESIDING JUSTICE BURKE" } ], "attorneys": [ "Kelly, Riley & Sheffey, of Chicago (William E. Riley and Harry G. Fins, of counsel), for appellant.", "Conrad G. Verges, George B. Collins, and John Cusack, all of Chicago (Conrad G. Verges, of counsel), for appellee." ], "corrections": "", "head_matter": "Delores S. Powers, Plaintiff-Appellant, v. Kenneth N. Powers, Defendant-Appellee.\nGen. No. 49,091.\nFirst District, Second Division.\nFebruary 4, 1964.\nKelly, Riley & Sheffey, of Chicago (William E. Riley and Harry G. Fins, of counsel), for appellant.\nConrad G. Verges, George B. Collins, and John Cusack, all of Chicago (Conrad G. Verges, of counsel), for appellee." }, "file_name": "0057-02", "first_page_order": 69, "last_page_order": 74 }