Krieger v. Krieger

120 Ill. App. 634, 1905 Ill. App. LEXIS 704

• Court: Appellate Court of Illinois
• Decided: May 29, 1905
• Docket: Gen. No. 11,907
• Status: Published

Opinion

Mr. Justice Adams

delivered the opinion of the court.

The contention of counsel for plaintiff in error is, that the order of July 18, 1903, vacating the decree of June 26, 1903, and reinstating the cause, is void for want of jurisdiction, and that all orders subsequent to June 26, 1903, when the bill was dismissed, on motion of complainant’s solicitor, including the final decree of divorce, are void for want of jurisdiction.

The court, in the order of July 18, 1903, finds that it has jurisdiction of the parties and the subject-matter, and also finds that the defendant, Krieger, perpetrated a frauü on the court and on his own solicitor, Mr. James Lane Allen. But it appearing from the record that the order reinstating the cause is based solely on the affidavit of Mr. Charles C. Gilbert, the finding that the defendant perpetrated a fraud on the court, is not conclusive, and the affidavit may be referred to in determining that question. It is stated in Mr. Gilbert’s affidavit that “the said parties, through their respective solicitors, agreed, among other things, that the said bill should be dismissed, and that the said respondent should have the custody of said child thereafter upon one day in each week, and until a court of competent jurisdiction should, at some future time, fix the status of said child, respecting its said parents; but it was distinctly understood and agreed that under no circumstances was said child to be kept away from complainant after dark. Affiant further states that the said complainant, then and there, relying upon said agreement, made as aforesaid, and upon the good faith of said respondent, directed this affiant, as her solicitor, to dismiss said bill of complaint, which was accordingly done on the 26th day of June, 1903.” The bill was dismissed by complainant’s solicitor, as was agreed between the parties; no artifices were resorted to for the purpose of deceiving or misleading the court. The affidavit does not support the finding that the defendant perpetrated a fraud on the court, and we cannot concur in that finding. June 26, 1903, when the bill was dismissed, and July 18, 1903, when the cause was reinstated, were both days of the June term, 1903. The court has control of a judgment or decree during the term at which it is rendered, and may, on good cause shown, amend or set it aside during such term. Stahl v. Webster, 11 Ill., 511; Smith v. Vanderburg, 46 Ill. 34; Edwards v. Irons, 73 Ill. 583; Shannahan v. Stevens, 139 Ill. 428.

In Smith v. Vanderburg the court say : “During the term the record of every cause is in the breast of the court, and such amendments may be made by the court, on its own motion, after inspection thereof, as justice and the right of the case may seem to require.”

In Edwards v. Irons, the court say: “ There is no rule of practice better settled or more uniformly recognized than that the record of a judgment is under the control of the court during the term at which it is rendered.” This statement of the law necessarily involves that the court, during the term at which a judgment or decree is rendered, retains jurisdiction of the parties and the subject-matter of the litigation; which being so, the court had jurisdiction of the defendant, Krieger, when the order of July 18, 1903, vacating the order of June 26, 1903, and reinstating the cause, was rendered. And if the court had jurisdiction of the defendant, the notice served by complainant’s solicitor on Mr. J ames Lane Allen, defendant’s solicitor, was notice to the defendant. Mr. Allen was retained as defendant's solicitor in the cause, and was, when the notice was served upon him, defendant’s solicitor of record, and he and the defendant were bound to take notice of the law, that the decree of J une 26th, was in the breast of the court during the term.

It is manifest that, to hold that an attorney or solicitor is not authorized to appear for his client after the rendition of a judgment or decree, and during the term at which it is rendered, and while, in contemplation of law, it remains in the breast of the court, would not only be extremely inconvenient to the court and suitors, but, if a party should remove beyond the jurisdiction of the court, as the defendant is alleged to have done in the present case, might result in injustice. In U. S. v. Curry, 6 How. marg. p. 110, a decree was rendered by the United States District Court for the Louisiana district, an appeal was taken to the Supreme Court of the United States, and a citation was issued to the appellees, requiring them to appear in the latter court at a time specified in the citation, and was served by the marshal on the attorney for the appellees in the District Court. An affidavit of the attorney was filed in the Supreme Court, stating that at the time of service on him he was not attorney for the appellees, that his fee had been paid, and that he had been discharged as appellees’ attornev, and that he so informed the marshal at the time of service on him. In respect to the service, the court say: “Ho attorney or solicitor can withdraw his name., after he has once entered it upon the record, without leave of court; and while his name continues there, the adverse party has a right to treat him as the authorized attorney or solicitor, and the service of notice upon him is as valid as if served on the party himself; and we presume that no court would permit an attorney who had appeared at the trial, with the sanction of the party, expressed or implied, to withdraw his name after the case is finally decided. For, if that could be done, it would be impossible to serve the citation where the party resided in a distant country or whose place of residence was unknown, and would in every case occasion unnecessary expense and difficulty, unless he lived at the place where the court was held, and so far from permitting an attorney to embarrass and impede the administration of justice by withdrawing his name after trial and final decree, we think the court should regard any attempt to do so as open to just rebuke.”

In Tripp v. Santa Rosa St. R. R. Co., 144 U. S. 126, which was error to reverse a judgment of the Superior Court of California, notice of the citation was served on the attorney of record of the defendant in error by mail, and the court, citing with approval United States v. Curry, held the notice sufficient.

Similar service was held sufficient in Miller v. Miller, 37 How. Pr. R. 1, and Doane v. Glenn, 1 Colorado, 454. See, also, Lusk v. Hastings, 1 Hill, 656, 662.

Appellant’s counsel say of the cases cited that “ they are simply contrary to the rule of this State laid down in Swift v. Allen,” which case is mainly relied on by counsel for defendant in support of the contention that the service on defendant’s solicitor of notice of the motion to vacate the order of June 26, 1903, was a nullity. In that case the complainant in a bill in equity, which was dismissed, gave notice, after the expiration of the term at which the decree xvas rendered, to the former solicitor of the defendant of a motion for a material amendment of the decree, and the court granted, the motion. Held, that the notice to thq former solicitor for the defendant was of no avail, “ because his connection with the suit had terminated with the final decree,” and that the order amending the decree was a nullity. The court, in the opinion, say : “ At a subsequent term this decree was amended on motion.” In the present case, the motion was made and notice servéd at the term at which the decree dismissing the bill was rendered. Our conclusion is that the court had jurisdiction to hear and determine the motion. Whether the court erred in granting the motion is another question. Counsel for defendant contend that the court erred in sustaining the motion, for two reasons : first, because the decree was by consent, and therefore, could not be vacated or set aside on motion, but only by original bill; and second, that the defendant’s alleged breach of his agreement was not, in legal contemplation, such fraud as warranted the vacation of the dismissal decree. It is not expressed in the decree dismissing the bill that it was dismissed by consent, but it appears by the affidavit of Mr. Gilbert, complainant’s solicitor, that the bill was, in fact, dismissed by .agreement between the parties, and the court, in the order vacating the decree dismissing the bill and reinstating the cause, finds “ that the parties hereto entered into the agreement as set forth in the affidavit.” In Armstrong v. Cooper, 11 Ill. 540, the defendant in error pleaded specially that the decree sought to be reversed was entered by agreement and consent, to which plea the plaintiff in error demurred, objecting that the party pleading could not show outside the record that the decree was rendered by consent, inasmuch as the record showed that it was rendered by default. But the court held the plea good, saying: “ A decree which is entered by the agreement or consent of the parties, or their counsel, ought, more properly, to state that fact upon its face. 2 Daniell’s Chan. Pl. & Prac. 1214. But we have found no authority for saying that that is indispensable, or that it can only be shown by the record that the decree was so entered.” So far as we can find, this holding has never been overruled, modified or explained. The court, in the case cited, also say : “A decree by consent cannot be appealed from, nor can error be properly assigned upon it. Even a rehearing cannot be allowed in the suit, nor can the decree be set aside by a bill of review.”

In Knobloch v. Mueller, 123 Ill. 554, 565, the court say: “ Decrees of courts of chancery, in respect of matters within their jurisdiction, are as binding and conclusive upon the parties and their privies as are judgments at law; and a decree by consent, in an amicable suit, has been held to have an additional claim to be considered final. (Alleson v. Stark, 9 A. & E. 225.) Decrees so entered by consent cannot be reversed, set aside or impeached by bill of review or bill in the nature of a bill of review, except for fraud, unless it be shown that the consent was not, in fact, given, or something was inserted as by consent that was not consented to.” Citing, Armstrong v. Cooper, and other authorities.

In Cox v. Lynn, 138 Ill. 195, 204, the court say: “ A bill of review does not lie to vacate or review a decree entered by consent, unless the consent of the parties was obtained by fraud or mistake.”

In First Nat. Bank v. Ill. Steel Co., 174 Ill. 140, 154, the court cite with approval Armstrong v. Cooper, and quote with approval the language, “ a decree by consent cannot be appealed from,” etc.

It has been held that, even when a consént decree has been induced by fraud, relief cannot be had on mere motion but only by original bill. 2 Daniell’s Ch. Pl. & Pr. 5th ed. 1472; Ib. 973-4; Monell v. Lawrence, 12 Johns. Rep. 521, 534-5; Edney v. Edney, 81 N. C. 1; Harrison v. Rumsey, 2 Vesey Sr., top p. 488; Bradish v. Gee, Ambler’s Chan. R. 229; Williams v. Neil, 4 Heisk. (Tenn.) 279.

In Monell v. Lawrence, supra, the court say : “ There is, also, another objection to the mode adopted by the appellant to obtain relief in the court below, even if an application for relief could in any way be sustained; it is an attempt to set aside, upon motion, a. decree entered by consent of parties. This is against the established mode of proceedings in chancery. The case of Harrison v. Rumsey (2 Ves. 488), came before the court upon petition, and Lord Hardwick said he would by no means set aside a decree obtained by consent of counsel on both sides, for it would be most dangerous, and it was an established rule not to do it nor would he make the precedent. There was, he said, a good while ago, an appeal of that kind in the house of lords, who desired the party to bring an action against the counsel; if they could prove a collusion on the counsel, it would be a different thing; and in the case of Bradish v. Gee (Ambler, 229), the same lord chancellor said, where a decree is made by consent of counsel, there lies not an appeal or rehearing, though the party did not really consent; but his remedy is against his counsel. But if such decree was by fraud and covin, the party may be relieved against it, not by rehearing or appeal, but by original bill.”

In Williams v. Neil, supra, the court say: “It is well* settled that there lies no appeal or rehearing from a decree by consent, and such decree can only be impeached by an original bill in the nature of a bill of review, when it has been obtained by fraud or imposition,” citing cases. In Karr v. Freeman, 166 Ill. 299, the court held that an original bill, in the nature of a bill of review, is a proper remedy in a case in which a decree has been entered in violation of an agreement between counsel, and say: “So far as the jurisdiction of a court of equity is concerned, it can make no difference whether the agreement was violated by the complainant by fraud or mistake.” Also, the language of the court in Cox v. Lynn, supra, namely: “ A bill of review does not lie to vacate or review a decree entered by consent unless the consent of the parties was obtained by fraud or mistake,” indicates that a bill of review, or bill in the nature of a bill of review, is the proper remedy in such case. It would seem to follow logically, from the unqualified opinion in Armstrong v. Cooper, that a decree by consent cannot be appealed from, nor a rehearing allowed, and that relief cannot be obtained bn mere motion. The reason of the rule is thus stated in 5 Ency. of Pl. & Pr. 961, 962: “ A consent decree is not, in a strict legal sense, 5 a judicial sentence,’ but it is in the nature of a solemn contract and it is an elementary principle that it cannot be amended or in any way varied, without the like consent, nor can it be reheard in the court that rendered it, appealed from, nor reversed upon a writ of error or bill for review.” * See, also, McEachern v. Kerchner, 90 N. C. 177, to the same effect.

We will next consider the charge of fraud. The only matter charged as fraud in Mr. Gilbert’s affidavit is, that the defendant, after agreeing June 26, 1903, that he should have the custody of the child, Eddy Bert Krieger, one day in each week, and until the child’s status, in respect to his .parents, should be fixed by a court of competent jurisdiction, and under no circumstances should the child be kept from the complainant after dark, violated his agreement by taking the child with him to Germany, as the affiant has been informed and believes, for the purpose of secreting and placing the child beyond the jurisdiction of the court. In other words, that the defendant broke his alleged promise, on which the complainant relied, in agreeing to dismiss her bill. Was the alleged breach of promise a fraud which would warrant the court in vacating the decree of June 26, 1903, on the hypothesis that a motion was the proper remedy % We think not. There was no representation of any existing fact. Even though there was a false representation of intention, or that when the defendant made the alleged agreement or promise, he did not intend to keep it, this would not constitute fraud. People v. Healy, 128 Ill. 9. In the case cited the court quotes, with approval, the following from Gage v. Lewis, 68 Ill. 604: “It cannot be said that these representations and promises were false when.made, for, until the proper time arrived, and the plaintiff refused to comply with them, it could not positively be known that they would not be performed. Even if, at the time they were made, it was not intended to comply with them, it was but an unexecuted intention, which has never been held, of itself, to constitute fraud. If they legally amount to anything, they constitute a contract.” And in the same case it is said: “A promise to perform an act, though accompanied, at the time, with an intention not to perform, is not such a representation as can be made the ground of an action at law. The party should sue 'upon the promise.”

In Haenni v. Bleisch, 146 Ill. 262, a father purchased a tract of land and procured conveyance thereof to his two daughters, Eva and Catherine. Subsequently, he requested Eva to convey to Catherine her undivided interest in the land, which Eva did, on her father’s promise to pay to her in money the value of her interest so conveyed to Catherine. Her father did not keep his promise, and Eva filed a bill alleging fraud. The lower court dismissed the bill for want of equity, and the court affirmed the decree, saying, among other things: “ If, therefore, a court of equity can be resorted to, on the facts here alleged, to annul a deed of conve3ance to real estate, then in every case in which there is a breach of the vendee’s contract to pay for the land conveyed, the vendor can avoid the deed. Certainly no one will contend that such is the law. A false representation, within the meaning of the law, ‘ must be as to a past or present state of facts—not merely as to an intention as to the future.’ Gage v. Lewis, 68 Ill. 604, citing Kerr on Fraud and Mistake, 88, wherein it is said: ‘As distinguished from the false representation of a fact, the false representation as to a matter of intention not amounting to a matter of fact, though it may have influenced a transaction, is not a fraud in law.’ Also, Gallager v. Brunel, 6 Cow. 346, holding ‘ that to warrant an action for a deceitful representation it must assert a fact or facts as existing in the present tense. A promise to perform an act, though accompanied at the time with an intention not to perform, is not such a representation as can be made the ground of an action at law. The party should sue upon the promise, and if this be void he has no remedy.’ ”

Counsel for defendant contend that the evidence is insufficient to support the decree of divorce, rendered May 4, 1904, and counsel for complainant contends that there is no proper certificate of evidence. In view of our conclusions, we do not deem it necessary to pass on these contentions.

Our conclusions are that the court erred in its order of July 18, 1903, in setting aside and vacating the decree of June 26,1903, and reinstating the cause, and that all orders in the cause, including the divorce decree of May 4, 1904, entered after June 26, 1903, except the order of August 13, 1904, and the order allowing defendant an appeal from that order, were and are .erroneous. Therefore, the order of July 18, 1903, vacating the decree of June 26, 1903, and reinstating the cause, and also all orders subsequent to June 26, 1903, including the decree of May 4, 1904, granting complainant a divorce, except the order of August 13, 1904, and the order-granting defendant an appeal from that order, will be reversed, and our opinion being that' the Circuit Court cannot, on motion, vacate or set aside the decree of June 26, 1903, the cause will not be remánded.

Reversed.

Mr. Justice Brown took no part in the decision of this case.