Whelan v. Whelan, 161 Ill. App. 293 (1911)

April 18, 1911 · Illinois Appellate Court · Gen. No. 15,443

161 Ill. App. 293

Mary E. Whelan, Appellee, v. Michael J. Whelan, Appellant.

Gen. No. 15,443.

Contempt—when attachment for, improperly issued. In the absence of notice of a rule to show cause, an attachment for contempt is improperly issued.

Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1909.

Reversed.

Opinion filed April 18, 1911.

Charles A. Churan, for appellant.

No appearance for appellee.

Mr. Presiding Justice Smith

delivered the opinion of the court.

This is an appeal by Michael J. Whelan from an order that an attachment issue for contempt of court in failing to pay to Mary E. Whelan, appellee, $227.50 as alimony accrued under a decree of the Circuit Court, and from the denial of a motion to set aside the order for attachment.

The record shows that the only notice served upon appellant was a notice of a motion for a rule to show cause, and the evidence of this service is defective. No notice of the rule or order to show cause was served on appellant personally. “With few exceptions the rule generally obtains that nothing but personal service on the accused of the order to show cause why an attachment shall not issue against him will meet the requirements of the law.” 4 Ency. PI. & Pr. 782; Rapalje on Contempt, sec. 87; Bonner v. People, 40 Ill. App. 628.

For want of proper notice of the order to show cause the judgment or order of the Circuit Court is reversed.

Reversed.