Jenkins v. Elizabeth Jenkins.

• Decision Date: 27 September 1882
• Citation: 104 Ill. 134,1882 WL 10390
• Parties: JOHN JENKINSv.ELIZABETH JENKINS.
• Court: Illinois Supreme Court

104 Ill. 134

1882 WL 10390 (Ill.)

JOHN JENKINS

v.ELIZABETH JENKINS.

Supreme Court of Illinois.

Filed at Ottawa Sept. 27, 1882.

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

Mr. ARTHUR D. RICH, for the appellant:

The courts will not encourage married persons to live apart, otherwise than under the authority of a judicial decree. 1 Bishop on Marriage and Divorce, sec. 550.

If a wife abandons her husband without justifiable cause, or is living apart from him without his consent or fault, he will not be liable for her separate maintenance. Wahle v. Wahle, 71 Ill. 510; Ross v. Ross, 69 Id. 569; Angelo v. Angelo, 81 Id. 251; Bevier v. Galloway, 71 Id. 517.

While a husband is guilty of no cruelty towards his wife, and is willing to provide her a home and all necessaries there, he is not bound to furnish them elsewhere. McCutcheon v. McGahay, 11 Johns. 282; Rutherford v. Cox, 11 Mo. 347; Ross v. Ross, 69 Ill. 569; 1 Bishop on Marriage and Divorce, sec. 573.

If at the time a wife, after having left her husband, offered to return, he had good grounds for a divorce against her for desertion, it was quite proper for him to refuse to condone her offence and refuse to let her remain with him. If her divorce suits which she had instituted were not brought in good faith, her desertion for that purpose will not be excused in law. Doyle v. Doyle, 26 Mo. 545; Simons v. Simons, 13 Texas, 468; 1 Bishop on Marriage and Divorce, sec. 802.

Messrs. E. & A. VAN BUREN, for the appellee, commented upon and reviewed the evidence, to show that appellee's offer to return and live with her husband was made in good faith, and contended that his refusal to receive her back gave her the right to a separate maintenance. Also, that the finding of the facts by the Appellate Court justified the decree, and that such finding of the facts was conclusive in this court, citing Hurd's Stat. p. 820, sec. 88; Gravitt et al. v. Davis, 92 Ill. 193; Laird v. Warner, Id. 204; Carr v. Miner, Id. 604; Morris v. Preston, 93 Id. 215; Illinois and St. Louis R. R. Co. v. Cobb, 94 Id. 55; Germania Fire Ins. Co. v. McKee, Id. 494; Hewitt v. Board of Education, Id. 528; Albin v. Kinney, 96 Id. 214; Brandt v. Lill et al. Id. 608.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

This is a suit by Mrs. Jenkins against her husband for separate support, upon the ground, as alleged, that she is living separate from her husband without her fault. The record shows that the parties were married in 1867. Soon after the marriage the parties had a difficulty, and she filed a bill for divorce upon a charge of cruelty. That bill was dismissed. In 1872 she filed another bill seeking a divorce upon the ground of alleged cruelty. On hearing, this bill was dismissed by the court. The complainant at once returned to his house, and lived in his house for a time, and again filed a bill for divorce, charging her husband with adultery. This was in May, 1875. In this case the circuit court made the decree sought. That decree was reversed upon the merits by this court, in an opinion filed January, 1878. (See 86 Ill. 340.) This bill was filed June 7, 1878. She now claims to be living separate and apart from her husband without her fault, upon the allegation that he wrongfully refuses to permit her to live with him at his home. This allegation she attempts to support by proving that on May 5, 1878, she, in company with some friends (the chief of whom was a Mrs. Smith), went without notice to the dwelling of her husband, and entered the house when he was absent; that soon he came in and found them there, and seemed very much surprised, and ordered her and her friends to leave; that in the interview she asked for her supper, which was refused, and attempted to enter a bedroom with a traveling bag in her hand, and he forbade it, and told her she could not stay there that night.

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