3 N.E. 232 (Ill. 1885), Johnson v. Johnson

Citation:3 N.E. 232, 114 Ill. 611
Opinion Judge:[114 Ill. 614] SHOPE, J.
Case Date:November 14, 1885
Court:Supreme Court of Illinois

Page 232

3 N.E. 232 (Ill. 1885)

114 Ill. 611




Supreme Court of Illinois

November 14, 1885

Error to appellate court, Third district.

[114 Ill. 614] SHOPE, J.

This was a bill for divorce filed by Sarah C. Johnson, defendant in error, against Michael E. Johnson, plaintiff in error, in the Cass circuit court, where a decree of divorce was rendered. The cause was taken by writ of error, by defendant below, to the appellate court of the Third district. The decree of the lower court was there affirmed, and the present writ of error is prosecuted to this court from that order of affirmance. The bill alleges, in the usual form, the residence of complainant, her marriage with defendant, and charges willful desertion by him for more than two years, etc. At the August term, 1884, of said circuit court the defendant appeared, and filed a plea averring, in apt words, that before the filing of her bill in said court, the complainant had exhibited her bill in the Menard circuit court against the defendant for divorce, and alleging as cause therefor the same matters, etc., set up in her bill here filed, but failed to aver that such former proceeding was still pending. To this plea a demurrer was interposed, and sustained by the court, and this ruling is, among others, assigned for error. The demurrer was properly sustained. The plea to have been sufficient should have averred that the former cause was then pending. Garrick v. Chamberlain, 97 Ill. 620. The defendant, by leave of the court, answered, denying the allegations of the bill. Replication being filed thereto, the cause was tried by a jury, resulting in a verdict for complainant. A motion by defendant for a new trial was overruled, and, on a subsequent day of the term, a decree of divorce entered. After the jury had retired to consider of their verdict, the defendant, by leave, filed an amendment to his answer, in which it was averred 'that at the time of the pretended marriage of the complainant with the defendant, the complainant was a married woman, and was then and there the wife of one Albert [114 Ill. 615] Thurber, who was then and there alive.' After the return of the verdict, this amendment was, on complainant's motion, stricken from the files, and this ruling is also assigned for error. This motion was addressed to the sound discretion of the court, the exercise of which will not be the subject of review,

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unless it appears that some substantial right has been lost to the defendant, or some legal or equitable defense denied him.

In the view we take of this case, as will be seen hereafter, this amendment could have been of no avail to the defendant upon the case made by the evidence introduced or offered in the court below. That the evidence is sufficient to warrant the verdict and decree in favor of complainant is not denied by counsel for defendant, if her marriage with the defendant was a valid marriage. The serious contention is that at the time of the marriage of complainant with defendant she had a former husband living, and therefore her marriage with defendant was void; that, whatever her rights under a bill properly framed for that purpose might be, no relief could be granted under this bill. This position of counsel would be undeniable if the evidence warrants the assumption that complainant had a former husband who was living at the second marriage and from whom she had never been divorced. The only evidence contained in the record tending to establish that, at the time of her marriage with defendant, complainant had a husband living, is that given by complainant in cross-examination by defendant's counsel. This was, in substance, that complainant was married to one Albert Thurber, in Menard county, Illinois, on the twenty-sixth day of July, 1866; that they lived together three months; that said Thurber then deserted her and went away; that about a year after the separation, and some time in 1867, she received a letter from him, and that from that time to the trial in August, 1884, she had not seen him...

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