Gordon v. Gordon

• Decision Date: 24 March 1892
• Citation: 141 Ill. 160,30 N.E. 446
• Parties: GORDON v. GORDON.
• Court: Illinois Supreme Court

141 Ill. 160

30 N.E. 446

GORDON

v.GORDON.¹

Supreme Court of Illinois.

March 24, 1892.

Appeal from appellate court, first district.

Bill for divorce by Ada E. Gordon against George B. Gordon. On March 2, 1887, complainant, a resident of Toronto, Canada, filed her bill charging adultery in Chicago. She affirmed that her husband was a resident of Buenos Ayres, and service was had by publication, followed by default. The case was heard of May 7th, and adjourned for further evidence. On May 28, 1887, a decree was entered granting the divorce. On May 7, 1887, having been assured by her solicitor that a divorce had been granted, she married in Chicago a man named Wilson, and on the same day returned to Toronto, having on this visit to Chicago been absent only about three days from her home in Toronto. At the time she filed her bill she remained in Chicago three weeks only. On February 7, 1889, George B. Gordon filed his petition to be admitted to defend, showing that he had not been in Chicago at the time of the alleged adultery; that at the time the bill was filed he was a resident of Buenos Ayres, in the Argentine Republic, of which Ada E. Gordon was aware at the time she made said affidavits; and that he had no notice or knowledge of the proceedings until about six months prior to the filing of his petition. On April 13, 1889, a decree was made setting aside that of 28th May, 1887, as having been obtained by fraud, and dismissing complainant's bill. On September 19, 1889, Ada E. Gordon filed a new bill against her husband, charging adultery in Chicago since the dismissal of her former bill. The defendant answered denying the charges, and also, in recrimination, setting up the adultery of the complainant with Wilson. On April 21, 1890, an order was made directing the defendant to pay $150 counsel fee to complainant's counsel. On September 19, 1890, for default of payment forth with of $150, the defendant's answer was struck from the files. On the same day the complainant proceeded with the trial and examination of witnesses, and the judge reserved his decision. In a few days thereafter the defendant applied to be allowed to pay the $150, and to have his answer reinstated, which was denied him. On 4th December, 1890, a decree was made granting the prayer of complainant's bill. The decree was reversed by the appellate court, and complainant appeals. Affirmed.

SHOPE, J., dissenting.D. T. Duncombe and Ernest Langtry, for appellant.

Frank Ives, for appellee.

CRAIG, J.

Two questions are presented by this record: First, whether the court erred in striking out the answer of the defendant, George B. Gordon, for his failure to pay temporary alimony as decreed by the court; second, whether Ada E. Gordon, complainant, was guilty of adultery by her marriage with Harvey Wilson on the 7th day of May, 1887, and her subsequent cohabitation with him as his wife from that date until the 2d day of March, 1889, when she discovered that her decree of divorce was invalid.

The questions involved are important, and not entirely free from difficulty. It is clear that the defendant was in contempt of court in failing to obey the decree of the court in ordering the payment of temporary alimony; and, while the court had the power to resort to such means as are provided in chancery practice to enforce obedience to its decrees, whether the court had the power to go so far as to prevent the defendant from interposing a defense to the merits of the bill, while he was in contempt of court in failing to pay a decree for the payment of temporary alimony, presents a serious question. There are authorities which sustain the ruling of the court. Walker v. Walker, 82 N. Y. 260, may be regarded as a leading case on the question. There, as here, the defendant, in an action of divorce, was in contempt because of disobedience of an order of the court directing the payment of alimony, and it was held that an order directing defendant's answer to be stricken out, unless he obey the previous order within five days; also an order striking out the answer upon his failure to obey, and directing a reference to take proof of the facts stated in the complaint,-was proper. Where a complainant is in contempt there may be cogent reasons for holding that his proceedings shall be stayed so long as he remains in contempt, under the well-known maxim that ‘he who seeks equity must do equity. But this well-known principle cannot, in reason, be applied to a defendant who is merely defending himself against attack. Indeed, a rule denying a defendant a right of defense, solely upon the ground that he had failed to pay a moneyed decree in a divorce proceeding, would seem to be a harsh one, and one, too, which in many cases might work great injustice. The rule, therefore, in Walker v. Walker has not been looked upon with favor, and in many of the states, in its application to divorce cases, the courts have not followed it, but held the contrary doctrine. Peel v. Peel, 50 Iowa, 521;Baily v. Baily, 69 Iowa, 77, 28 N. W. Rep. 443;Johnson v. Superior Court, 63 Cal. 578. These cases hold that, although the defendant may be contumacious, the court cannot deprive him of the right of defense. In Haldane v. Eckford, L. R. 7 Eq. 425, where the doctrine contended for was attempted to be applied, the vice-chancellor said: ‘Although the contempt committed by the defendants had been of the most flagrant kind, yet, as what they asked was for the purpose of defending themselves, he had no jurisdiction to refuse the order.’ See, also, King v. Bryant, 3 Mylne & C. 191; Wilson v. Bates, Id. 197. The power of the court to commit the defendant until he obeyed the order of the court, or showed a satisfactory excuse for a failure to comply, is not questioned or denied; but upon what principle of justice can a ruling be sustained which denied a defendant all right to be heard in defense of the case made in the bill? If the court had the power to strike out the answer, it necessarily had the power to refuse to hear any evidence the defendant might offer in answer to the bill or in support of the matters set up in the answer. A rule of this character, once established in divorce cases, would not, in our judgment, have a beneficial effect upon the rights of parties, and in many cases the tendency of the rule would be to bring the law into disrepute. Under our practice, divorce are granted and marriage contracts set aside quite as readily as could be desired if proper regard is given to the well-being of society; but should a defendant be denied the right of all defense for non-payment of alimony, in many cases doubtless divorces would be granted and marriage contracts set aside upon false or insufficient evidence, for the reason the defendant was denied the right to expose a false or fictitious case. It is true that the defendant's counsel was permitted to cross-examine complainant's witnesses, but this did not cure the error. When the answer was stricken out, the foundation for the defendant's defense was gone. He had the right to presume that no evidence would be allowed or considered in defense of the matters relied upon to defeat the bill.

Section 10, c. 40, Rev. St. 1874, provides that in suits for divorce, when adultery is the ground of complaint, if it appears that both parties have been guilty of adultery, no divorce shall be decreed. The defense interposed in this case was that the complainant had been guilty of adultery; and, if the facts as they appear in the record are sufficient to sustain that charge, the decision of the appellate court holding that complainant had been guilty of adultery will have to be affirmed. In Bishop on Marriage (volume 1, § 1507) the author lays down the rule that adultery, to justify divorce, must be voluntary. The doctrine is also laid down that adultery is not committed where the party is compelled by force or ravishment, or where the wife has intercourse with a man not her husband through mistake, she believing him her husband, or where the wife marries another man, through a belief that her former husband is dead, and during the continuance of this belief lives in matrimonial intercourse with him. The author then adds: ‘If in the case last mentioned the statutes make the second marriage voidable, * * * in distinction from void, a cohabitation under it is not adultery.’ In section 1511 the author says: ‘If the second marriage is void, a voluntary cohabitation under it, otherwise than through innocent mistake, as just explained, will be adultery.’ In section 1514 the author says: ‘If, after a formal divorce, the defendant should suppose it valid when it was void, because of some fact he had no knowledge of, then, since parties are not concluded to know facts, cohabitation under a second marriage contracted by him would not be adultery, unless continued after he became a ware of the facts.’

As we understand the argument of appellant's counsel, they rely mainly on the doctrine last announced by Bishop. In the argument it is said: ‘What the appellant did in this case she did under the sanction of the law and under a decree of the court. When she married the second time that decree remained absolutely good, and was binding until it was set aside, and she has the right to claim, as she had the right and still has the right to claim, the protection under that decree up to the time it was set aside.’ In order to determine whether complainant falls within any of the rules heretofore alluded to, it will be necessary briefly to refer to the facts. On the 2d day of March, 1887, complainant filed her bill for divorce against George B. Gordon, in the superior court of Cook county, on the ground, as alleged in her bill, of cruel treatment and adultery. Service was had by publication, and defendant did not appear. On the 7th day of May, 1887, the cause was called for trial, and complainant testified as a witness in the case. After the hearing, and on the...