MR. JUSTICE DOVE delivered the opinion of the court.
Defendant, Edward E. Kleinschmidt, is prosecuting this interlocutory appeal from a temporary injunction issued by the circuit court of Lake county, in a divorce proceeding, enjoining defendant from litigating a divorce action previously instituted by him in the State of Florida against the plaintiff, Marie J. Kleinschmidt.
The primary issue presented in this cause is the propriety of the issuance of the temporary injunction by the circuit court under the facts and circumstances presented by the record.
From the record it appears that plaintiff, Marie Kleinschmidt, and defendant, Edward Kleinschmidt, were married at Highland Park, Illinois on September
Pursuant to the agreement, a home was built in Florida, which contained the property and personal effect of both parties, who resided there continuously from 1941 to 1944, and again in 1949. Plaintiff contends that the 1949 stay was merely an extended vacation, whereas defendant insists that the parties lived there from early 1949 until shortly before he instituted divorce proceedings on November 19, 1949, and that plaintiff left the state to avoid service, but he continued to reside there until May 26, 1950, when plaintiff filed suit in Illinois.
In defendant's divorce action in Florida, in which he is the plaintiff, it is alleged that both parties were residents of Miami Beach, Dade county, Florida. In addition to the prayer for divorce, supported by appropriate allegations, defendant (plaintiff therein) sought an injunction, enjoining Marie Kleinschmidt from molesting him or interfering with his work, and a determination of which inventions should be assigned to her under the 1939 agreement, as well as an order requiring her to deliver up his signed copy of that agreement, which she allegedly removed.
The ensuing sequence of pleadings and orders followed. On May 31, 1950, the Illinois court, on the application of plaintiff, entered an order restraining the several defendants, other than Edward Kleinschmidt, from transferring any assets belonging to him until further order of the court. On July 3, 1950, Edward Kleinschmidt filed his appearance and motion to dismiss on the ground that there was a prior action pending between the parties in Florida, in which plaintiff herein had entered a general appearance. This motion was denied on July 11, 1950, and the court ordered defendant to answer by August 21, 1950. On August 4, 1950, plaintiff filed a petition for a temporary injunction restraining Edward Kleinschmidt from further prosecuting his Florida action, and for attorney fees. On August 21, 1950, defendant, Edward Kleinschmidt, filed a motion to strike the complaint on
In this amendment plaintiff alleged that defendant was unable to obtain a divorce under Illinois law, that plaintiff believes that the courts of Florida grant divorces regardless of merit, and that if defendant is allowed to proceed in Florida it will be in the evasion of the Illinois laws, and will cause plaintiff great hardship, hence, an injunction should be issued without bond, restraining defendant from proceeding with the Florida action until further order of the court.
On September 5, 1950, while defendant's motion to strike was still pending, and before the expiration of the 5 days which the court had allowed defendant to answer the amendment, the court heard plaintiff's application for a temporary injunction restraining defendant from prosecuting the Florida action. At this hearing defendant's counsel objected to the injunction on the grounds that the complaint did not state a cause of action, since the allegations of cruelty were insufficient; that there was no allegation that defendant's residence in Florida was fraudulent; that the Florida court has jurisdiction of defendant's action, in which plaintiff has appeared generally; and that there are no allegations of inconvenience or hardship to plaintiff. Moreover, defendant's counsel called the attention of the court to the fact that the time for defendant to answer had not yet expired, and that his motion to strike was still pending. In support of defendant's denial that the parties resided in Illinois, counsel asked leave to call plaintiff under sec. 60 of the Civil Practice Act as an adverse witness; offered to present a certified copy of plaintiff's voters registration in Florida; and also argued that in the contract, which plaintiff made a part of the complaint, it was
The circuit court stated that it was obliged to assume as true the allegation of Illinois residency in plaintiff's complaint, for the purposes of the application for the injunction, and could hear no evidence on that issue until an answer was filed. The court, however, gave defendant until the following morning to answer, notwithstanding the fact that defendant's motion to strike was pending.
On the following morning, September 6, 1950, defendant advised the court that on the previous afternoon the circuit court of Dade county, Florida, entered a temporary injunction, restraining plaintiff herein from prosecuting this suit until further order of the Florida court. Without further consideration of the answer, which defendant had prepared in compliance with the order entered the preceding day, and without hearing any evidence on the issue of the residency of the parties, the circuit court issued the injunction enjoining defendant from proceeding with his action in Florida, from which order defendant excepted, and prosecuted this appeal.
Defendant did proceed, however, that same day, to file the verified answer to the amendment, in which he reserved all of the benefits of his motion to strike the complaint, but denied all the allegations of the amendment, and alleged that plaintiff and defendant resided in Florida from 1941 to 1949; that about the time defendant filed his divorce action against plaintiff she fled the state to avoid service of process, and filed a motion to quash, which the Florida court ruled constituted a general appearance; that since 1941 defendant has not been a resident of Illinois; that the Florida court on September 5, 1950, entered a temporary injunction restraining plaintiff herein from further
Plaintiff filed a reply to this answer on October 2, 1950, after the expiration of the statutory period therefor.
In determining whether the court erred in issuing the temporary injunction, this court will consider first, the effect of the Florida injunction, and secondly, whether this extraordinary remedy was warranted in view of the prior institution of the Florida proceedings, the contested residency of the parties, and without considering defendant's answer and any further evidence on the issue of residency.
In the Allen case, supra, where the Iowa court issued an injunction enjoining the Illinois proceedings, it was held that the Illinois court should have granted defendant's motion for a continuance pending the determination of the Iowa litigation. The court stated at p. 43:
"The Kavanagh case announced that a court in this State may, in certain situations, enjoin a citizen here from prosecuting a case in another State; and by parity of reasoning, that implied that a court of Iowa, for example, may exercise a similar authority. And a consequence of both deductions is, that in proper cases
With reference to the circumstances warranting the issuance of injunctions against proceedings in other states the court in the Kavanagh case, supra, stated:
"... the court will not restrain the prosecution of a suit in a foreign jurisdiction unless a clear equity is presented requiring the interposition of the court to prevent a manifest wrong or injustice. It is not enough that there may be reason to anticipate a difference of opinion between the two courts, and that the courts of the foreign state would arrive at a judgment different from the decision of the courts in the state of the residence of the parties. (Citation.) It is not inequitable for a party to prosecute a legal demand against another in any forum that will take legal jurisdiction of the case, merely because that forum will afford him a better remedy than that of his domicile. To justify equitable interposition it must be made to
Similarly, in 43 C.J.S. 502, it is stated:
"An injunction will not be granted merely because complainant prefers to have the matter adjudicated by his own courts, or there is some distrust of the courts of the sister state, or from consideration of mere inconvenience, particularly where the action in the foreign state is first commended and the court has jurisdiction of all the parties."
In support of her contention that the issuance of the injunction by the circuit court herein was in accordance with precedent, plaintiff relies essentially upon two Illinois cases which we shall closely consider.
In Kahn v. Kahn, supra, the wife filed a separate maintenance suit in Cook county, and without notice or bond, obtained a temporary injunction restraining
In Russell v. Russell, supra, after divorce proceedings were begun in Illinois, in which the husband filed a counterclaim, admitting his Illinois residence, he proceeded to establish residence in Nevada, and filed a suit for divorce there. This action was commenced some 4 days after plaintiff had filed a petition in Illinois restraining such action, and the Illinois court held that an injunction would lie to prevent him from continuing his out-of-state action, on the grounds that he had admitted in his counterclaim that he was a resident of Illinois, and had obviously left the state to acquire colorable residence in order to institute divorce proceedings.
Thus, it appears, that in the Illinois cases, as well as in practically all instances where out-of-state divorce actions were enjoined, the power of the court was exercised to restrain residents of the injunction forum from fraudulently applying to a foreign jurisdiction where their residence is merely pretended for the purpose of procuring a divorce. (128 A.L.R. 1480; McDonald v. McDonald, 182 Misc. 1006, 52 N.Y.S.2d 385.)
With reference to the issue of a defendant's residence or domicile, the court in the Kahn case quoted from the Royal League v. Kavanagh case, supra, where the Supreme Court stated:
"The state has power to compel its own citizens to respect its laws even beyond its own territorial limits,
The court in the Kahn case further defined the limit of this power at p. 147:
"... where both parties are domiciled within the state, an injunction may issue to restrain one of them from instituting divorce proceedings in another state, but such an injunction will not be issued against a nonresident spouse."
In the instant case, from the record before the court at the time the injunction was issued it was admitted that the parties owned, in joint tenancy, a home in Florida, built pursuant to an agreement "to buy or build a suitable residence in such community as the parties may agree upon to be used as a home for them." It was also uncontroverted that the parties resided there from 1941 to 1944, and again in 1949; and that defendant continued to reside there himself all through 1949 up until plaintiff filed her suit for divorce in Illinois in May, 1950; and that defendant owned some 6,000 acres of land in Florida, valued at $8 an acre. Plaintiff's assertion that the parties were still residents of Illinois was not merely denied by defendant, but his counsel offered to prove by plaintiff's own testimony, and by her voter's registration certificate
In Brandt v. International Brotherhood of Teamsters, supra, the court held that where defendants had appeared by counsel in court for the purpose of interposing an objection to the issuance of a temporary injunction (as did the defendant in the instant case), they were entitled to at least as much consideration as plaintiff, who invoked the jurisdiction of the court for this extraordinary purpose. The court stated:
"Since defendants have indicated to the court orally, and by way of objection to the issuance of the temporary order, a denial of the alleged acts of violence ... the court should, at least, have allowed them to introduce evidence in rebuttal of plaintiff's testimony."
On the basis of the foregoing analysis of this cause, it is our judgment that the circuit court erred in granting plaintiff's motion for a temporary injunction, and the order of the court enjoining defendant from further prosecuting his divorce proceeding pending in Florida, should properly be reversed.