{ "id": 2543526, "name": "Regina Hirsh, Plaintiff-Appellee, v. Max Hirsh, Defendant-Appellant", "name_abbreviation": "Hirsh v. Hirsh", "decision_date": "1967-03-29", "docket_number": "Gen. No. 66-115", "first_page": "354", "last_page": "360", "citations": [ { "type": "official", "cite": "81 Ill. App. 2d 354" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "218 NE2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "73 Ill App2d 72", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2583195, 2583510 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-app-2d/73/0072-02", "/ill-app-2d/73/0072-01" ] }, { "cite": "99 NE2d 129", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "409 Ill 226", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5309598 ], "year": 1951, "pin_cites": [ { "page": "229, 230" } ], "opinion_index": 0, "case_paths": [ "/ill/409/0226-01" ] }, { "cite": "34 Ill 395", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5288527 ], "year": 1864, "pin_cites": [ { "page": "403, 404" } ], "opinion_index": 0, "case_paths": [ "/ill/34/0395-01" ] }, { "cite": "94 NE2d 518", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "341 Ill App 444", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4987843 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/ill-app/341/0444-01" ] }, { "cite": "189 NE2d 33", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "40 Ill App2d 217", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5252135 ], "year": 1963, "pin_cites": [ { "page": "226, 227" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/40/0217-01" ] }, { "cite": "23 NE2d 710", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "372 Ill 336", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2528239 ], "year": 1939, "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/ill/372/0336-01" ] }, { "cite": "170 NE2d 122", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "20 Ill2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2736512 ], "year": 1960, "pin_cites": [ { "page": "192, 193" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0179-01" ] }, { "cite": "124 NE2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "4 Ill App2d 330", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5134420 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ill-app-2d/4/0330-01" ] }, { "cite": "102 NE2d 155", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "410 Ill 308", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5311146 ], "year": 1951, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/ill/410/0308-01" ] }, { "cite": "206 NE2d 304", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "56 Ill App2d 334", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5285626 ], "year": 1965, "pin_cites": [ { "page": "340, 341" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/56/0334-01" ] }, { "cite": "195 NE2d 233", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "45 Ill App2d 159", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5240552 ], "year": 1963, "pin_cites": [ { "page": "164, 165" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/45/0159-01" ] } ], "analysis": { "cardinality": 492, "char_count": 9953, "ocr_confidence": 0.624, "pagerank": { "raw": 9.668865474233442e-08, "percentile": 0.528858439237191 }, "sha256": "c82c327c4918d975716ac2ab5c320c218b8f00d4f429b086d6301f56db77a3b9", "simhash": "1:9ecf66e5160b950f", "word_count": 1678 }, "last_updated": "2023-07-14T21:56:23.996798+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MORAN and ABRAHAMSON, JJ., concur." ], "parties": [ "Regina Hirsh, Plaintiff-Appellee, v. Max Hirsh, Defendant-Appellant." ], "opinions": [ { "text": "MR. PRESIDING JUSTICE DAVIS\ndelivered the opinion of the court.\nThis is an appeal by the defendant-appellant from an order entered July 7, 1966, which among other things, denied the motion of the defendant to withdraw his pleadings heretofore filed in the case, gave judgment in favor of the plaintiff and against the defendant in the sum of $2,600 for unpaid temporary support due from December 1, 1965, to May 25, 1966, and specified that any subsequent temporary support should be retroactive to June 1,1966.\nThe action was brought by the plaintiff, Regina Hirsh, against the defendant, Max Hirsh, for separate maintenance and for the enforcement of a support agreement entered into between the parties on May 14, 1958. On November 26, 1965, defendant filed a special appearance and motion to quash the summons based on the assertion that he was not a resident of Lake County.\nPursuant to notice, a hearing was held on November 29, 1965, on plaintiff\u2019s motion for temporary support and attorneys\u2019 fees, and for a temporary injunction, at which time the defendant did not appear personally, but did appear by counsel. After the plaintiff had offered the testimony of six witnesses and seventeen exhibits, which were admitted in evidence, the trial court found that the defendant was a resident of Lake County when the suit was filed and the summons served upon him; denied defendant\u2019s special appearance and his motion to quash the summons; found that it had jurisdiction over the person of the defendant and over the subject matter of the action; ordered the defendant to pay the plaintiff temporary support in the sum of $100 per week, commencing December 1, 1965; and ordered that temporary injunction issue against the defendant, without bond, restraining him from further prosecuting a pending divorce action in Nevada wherein he was plaintiff and Regina Hirsh \u2014 the plaintiff herein \u2014 was defendant. No appeal was taken from this order.\nOn December 6, 1965, the defendant filed a document which was entitled, \u201cSpecial Appearance,\u201d wherein he objected to the venue of this court over the subject matter of the suit, and as grounds for such objection, again alleged that since September 11, 1965, he had not been a resident of Lake County, Illinois. He also filed a motion to strike the order of November 29, 1965, which denied his special appearance and motion to quash the service of summons upon him, and directed him to plead to the complaint. At the hearing on December 21, 1965, on the special appearance and motion, the court deleted that part of the prior order requiring the defendant to plead to the complaint and added thereto the words, \u201csaid special appearance stricken.\u201d\nThereafter, on January 20, 1966, the defendant filed an answer to the complaint, which denied the material allegations thereof and asserted, as an affirmative defense, that the defendant had been granted an absolute divorce from the plaintiff by a decree of the Second Judicial District Court of the State of Nevada in the County of Washoe, on December 6,1965.\nOn February 1, 1966, the plaintiff filed a petition for a rule against the defendant to show cause, if any he had, why he should not be held in contempt of the court for wilful failure to comply with the support order .and the provisions of the injunction order aforementioned. In said petition the plaintiff also sought a judgment for the sum of money due and owing to her under the temporary support order. The petition alleged that the defendant had not made any support payments pursuant to the court\u2019s order.\nOn February 23, 1966, the defendant filed a comprehensive motion wherein he asked that the court declare null and void its orders of November 29, 1965; and that the court dismiss plaintiff\u2019s petition filed February 1, 1966, and the plaintiff\u2019s complaint. And, on April 1, 1966, the defendant filed a motion for leave to withdraw all papers filed by him subsequent to December 21, 1965, for the reason that he desired to file his special appearance challenging the court\u2019s jurisdiction over his person and the subject matter of the controversy.\nOn July 7, 1966, the court heard the plaintiff\u2019s petition to show cause and for judgment for the support due; and heard the defendant\u2019s three motions: to withdraw his pleadings; for an order declaring the court\u2019s orders of November 29, 1965, to be void; and for the dismissal of plaintiff\u2019s complaint and her petition to show cause.\nAt the conclusion of the hearing and after the arguments of counsel, the court denied the defendant\u2019s motion to withdraw his pleadings; entered a judgment in favor of the plaintiff and against the defendant in the sum of $2,600 for unpaid temporary support due the plaintiff from December 1, 1965, to and including May 25, 1966; ordered the suspension of further support payments by defendant from June 1, 1966, until the hearing of the case on the merits; set the case for hearing on July 20, 1966; ordered that any subsequent order for temporary support should be retroactive to June 1, 1966; and reserved the court\u2019s ruling on the plaintiff\u2019s petition to show1 cause and on her request for attorneys\u2019 fees. It is from portions of this order that this appeal is taken.\nThe chronology of this proceeding is helpful in narrowing the issues involved in this appeal. It reveals that the defendant failed to take an appeal from the support order entered November 29, 1965. An order for temporary support in either a divorce or separate maintenance proceeding may be enforced by contempt proceedings and is an appealable order. Micelli v. Micelli, 45 Ill App2d 159, 164, 165, 195 NE2d 233 (1963). Also see: In re Estate of Sherwood, 56 Ill App2d 334, 340, 341, 206 NE2d 304 (1965).\nIt is established law, in Illinois, that the defendant in a separate maintenance action cannot attack the correctness of an order for temporary support by or through resistance to a supplementary proceeding to enforce such order. Department of Revenue v. Joch, 410 Ill 308, 315, 102 NE2d 155 (1951); Anderson v. Anderson, 4 Ill App2d 330, 348-354 inch, 124 NE2d 66 (1955).\nThe propriety of such temporary support order may be attacked, within 30 days from rendition, by an appropriate motion. After 30 days from its entry, it may be attacked, either by appeal, or by a proper petition under section 72 of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 72), but such order cannot be collaterally attacked unless it is void. Reynolds v. Burns, 20 Ill2d 179, 192, 193, 170 NE2d 122 (1960); Baker v. Brown, 372 Ill 336, 340, 23 NE2d 710 (1939).\nThe factual chronology herein reflects that after the court entered the orders of November 29, 1965, as amended by the order of December 21, 1965 \u2014 which denied the defendant\u2019s motion to quash the service of summons on him and which struck his special appearance \u2014 the defendant appeared before the court generally on diverse matters and filed various general pleadings including an answer. The answer alleged, as an affirmative defense, the Nevada divorce decree entered on December 6, 1965, but it did not assert, as affirmative defenses, improper venue, or the lack of jurisdiction in that the defendant was not amenable to process when served in Lake County. Thereby, the defendant did more than object to the jurisdiction of the court over his person. By so doing, he appeared generally in the case and waived the issue of jurisdiction over his person. Jones v. Jones, 40 Ill App2d 217, 226, 227, 189 NE2d 33 (1963); Dever v. Bowers, 341 Ill App 444, 449-453 incl., 94 NE2d 518 (1950). Moreover, even if the pleadings were withdrawn, the general appearance of the defendant would remain and the orders entered under such posture of the pleadings would be valid. Dart v. Hercules, 34 Ill 395, 403, 404 (1864).\nIn addition, the jurisdictional issue was before the court at the hearing held pursuant to notice and special setting on November 29,1965. While the plaintiff offered proof which was considered as conclusive by the trial court, and is likewise to this court \u2014 that the defendant was a resident of Lake County when this action was filed and when he was served with process \u2014 the defendant offered no evidence on the issue of his domicile or otherwise. Under the circumstances of this case, there is nothing in the concept of due process which requires that the defendant be given a second opportunity to litigate the jurisdictional issue.\nThus, the court had jurisdiction over the person of the defendant and the subject matter of the suit, and the temporary support order was valid and in full force and effect. Likewise, the judgment for the plaintiff and against the defendant in the sum of $2,600 \u2014 based on the payments provided for in such order \u2014 was a valid judgment.\nIt is also here argued by the defendant that the support order and judgment thereon was erroneous because the plaintiff made no showing of the defendant\u2019s financial ability to pay. Such contention bypasses the essential fact that there was no appeal from the temporary support order and, in addition, is factually untrue.\nThe defendant also appealed from that part of the order of July 7, 1966, which denied his motion for leave to withdraw his pleadings. However, that part of the order was not an appealable order and is not subject to review. It was not a final judgment, order or decree. Chicago Housing Authority v. Abrams, 409 Ill 226, 229, 230, 99 NE2d 129 (1951); Peach v. Peach, 73 Ill App2d 72, 77-79 inch, 218 NE2d 504 (1966).\nAccordingly, the order of the trial court is affirmed and the cause is remanded to the trial court for further proceedings consistent with the views expressed herein.\nOrder affirmed and cause remanded.\nMORAN and ABRAHAMSON, JJ., concur.", "type": "majority", "author": "MR. PRESIDING JUSTICE DAVIS" } ], "attorneys": [ "Frank M. Daly, of Waukegan, for appellant.", "Bellows, Bellows and Magidson, of Chicago, for appellee." ], "corrections": "", "head_matter": "Regina Hirsh, Plaintiff-Appellee, v. Max Hirsh, Defendant-Appellant.\nGen. No. 66-115.\nSecond District.\nMarch 29, 1967.\nFrank M. Daly, of Waukegan, for appellant.\nBellows, Bellows and Magidson, of Chicago, for appellee." }, "file_name": "0354-01", "first_page_order": 360, "last_page_order": 366 }