Brainard v. Brainard

Decided March 28, 1908

Illinois Circuit Court · decided 1908-03-28

Motion to quash attachment writ. Heard before Judge Ben M. Smith. This action was in assumpsit by the plaintiff against her divorced husband to recover on a decree of alimony rendered by the circuit court of Sangamon county. The suit was commenced on October 22, 1907, and on the same date plaintiff sued out an attachment in aid against the defendant as a non-resident, alleging his place of residence to be at Detroit, Michigan.

Decided 1908-03-28

¶1Judge Smith held said section unconstitutional for two reasons:

¶2First: That it is : obnoxious to the constitutional requirement that no person shall be deprived of property without due process of law (U. S. const. 5th and 14th amendments and 111. const, art. 2, see. 2), the necessary effect of the statute, if sustained, being to authorize a personal judgment without personal service, and ■

¶3Second: That it is invalid as discriminating against citizens of other states, thereby violating the 14th amendment to the federal constitution and also clause I, see. 2, art. 4 of the federal constitution.

¶4Note. The same conclusion was reached by Judge John H. Hume of the municipal court in Jones v. Auditorium Theater Co. (decided 1908, unreported). — Ed.