Krieger v. Krieger, 121 Ill. App. 11 (1905)

May 29, 1905 · Illinois Appellate Court · Gen. No. 11,958

121 Ill. App. 11

George E. Krieger v. Emily Bert Krieger.

Gen. No. 11,958.

1. Motion to vacate—when, should not he granted. A motion to vacate, made after the lapse of the decree term, should only be granted if the orders sought to he set aside were void for want of jurisdiction.

2. Orders—when, not void for want of. jurisdiction. Where a court having jurisdiction of the parties and of the subject-matter, erroneously reinstates a cause, orders subsequently entered in such cause are not void but merely erroneous.

Divorce' proceeding. Appeal from the Circuit Court of Codk County; the Hon. Frederick A. Smith, Judge, presiding. Heard in' this court at the October term, 1904.

Affirmed.

Opinion filed May 29, 1905.

Rubens, Fischer, Mosser & Rigby, for appellant.

Charles C. Gilbert, for, appellee.

Mr. Justice Adams

delivered the opinion of the court.

This appeal was consolidated for hearing with Krieger v. Krieger, error to the Circuit Court, general number 11907, and both cases were heard on the same record. The appeal is from an order of the court denying appellant’s motion, made June 28, 1904, to. vacate and set aside a decree entered in the cause May 4, 1904, and also to vacate and set aside an order entered in the cause July 18, 1903, and all other orders entered in said cause subsequent to June 26, 1903, on the ground that the court had no iurisdiction to enter said decree and orders.

We have held in George E. Krieger v. Emily Bert Krieger, 120 Ill. App., that the order of July 18, 1903, vacating and setting aside the order of June 26, 1903, and reinstating the cause, was erroneous, and that all orders in the cause subsequent to June 26, 1903, except the order of August 23, 1904, and the order allowing this appeal, were erroneous, to the opinion in which case reference is made. The order of July 18, 1903, was entered at the June term 1903, and the decree of May 4, 1904, was entered at the April term 1904, which term expired May 15, 1904, and appellant’s motion was made June 28, 1904, which was a day of the June term 1904. Thus the motion was made about a year after the order of July 18, 1903, was entered, and at the second term after the decree of May 4, 1904, was entered, and could only be granted if the decree and orders were void for want of jurisdiction.

In our opinion in Krieger v. Krieger, supra, in error, we did not hold that orders made in the cause, after June 26, 1903, were void for want of jurisdiction, but merely that they were erroneous. The court when, July 18, 1903, appellee moved to set aside the order of June .26, 1903, dismissing the cause, had jurisdiction of the parties and the subject-matter. It had the right to hear and decide the motion, and, because the court erred in allowing the motion and reinstating the cause, we do not think it follows that all the subsequent orders were void for want of jurisdiction, although erroneous. Our view being that the orders and decree in respect to which the motion was made were not void for want of jurisdiction, the order denying appellant’s motion must be affirmed.

Affirmed.