Elzas v. Elzas

• Decision Date: 14 February 1898
• Citation: 49 N.E. 717,171 Ill. 632
• Parties: ELZAS v. ELZAS.
• Court: Illinois Supreme Court

171 Ill. 632

49 N.E. 717

ELZAS

v.ELZAS.

Supreme Court of Illinois.

Feb. 14, 1898.

Appeal from appellate court, First district.

Bill by Ada Elzas against Simon L. Elzas. From a judgment of the appellate court affirming a decree for complainant, defendant appeals. Affirmed.

B. M. Shaffner, for appellant.

Joseph Wright, for appellee.

CARTWRIGHT, J.

Appellee filed her bill in the circuit court of Cook county against appellant for a divorce, on the ground of desertion. Appellant answered the bill, denying its allegations, and especially denying that he was ever legally or lawfully married to appellee. There was a hearing of the issues before the court, and they were found for appellee, and a decree was entered divorcing the parties, and awarding the custody of their child, Allen L. Elzas, to appellee. From that decree an appeal was taken to the appellate court for the First district, where it was affirmed.

The main dispute at the hearing was, and now is, over the question whether the parties ever entered into a legal contract of marriage. There was no ceremony or public solemnization of the contract between them, but complainant's claim was that on September 15, 1885, they entered into a valid contract of marriage. When parties come together and agree by a present contract to accept each other as husband and wife and enter into the marriage relation, such a contract will be valid and lawful, although not solemnized according to the provisions of the statute. The relation between the parties is always a matter of evidence, and may be proved by records or any other evidence sufficient to establish the fact; and, if it is shown that parties intending marriage have accepted each other as husband and wife, the contract will be enforced. Port v. Port, 70 Ill. 484;Hebblethwaite v. Hepworth, 98 Ill. 126.

Defendant was a gambler, and lived in Chicago, and also followed running races in various places. At the time of the marriage, complainant was 18 years of age, and was, and for some time had been, an inmate of a house of ill repute in that city. The direct proof of the marriage consisted of her testimony to the fact, and the testimony of her sister to defendant's statements and admissions. Complainant testified that she and defendant has known each other a little over a year at the time of the marriage; that he had professed great regard for her, and had spoken of taking her away from the house where she was, and having her lead a different life; that he had asked her if she thought enough of him to be his wife, and she told him that she did; that he had asked her to consider and think it over, and let him know if she made up her mind definitely what to do; and that she had seen him daily for a month previous to the time when he came to her and the agreement was made. What occurred at that time she narrated as follows: ‘He said: ‘Ada, I think you think a great deal of me. I do of you, and will you take me as your husband? I want you to settle it. You said you would consider it.’ I said: ‘Yes; I think enough of you, Sam, to live with you and be your wife.’ And he said: ‘Well, from this time I want your consent, and will you accept me as your husband? And, if so, I will take you as my wife.’ And I said: ‘Yes; I will.’ I said: ‘Who will we get to marry us? I was always brought up an Episcopalian, and that church calls for a ceremony.’ He said: ‘There is no ceremony necessary. I am a Jew, and you are a Gentile. It would not be more legal if a ceremony was performed. It is only a contract. I agree to take you as my wife, and then we will be husband and wife.’ And he then gave me the ring I have. I then consented to be his wife.' She testified that he then told her to leave that house at once; she asked where they should go, and he told her to pack up her trunk, and get out at once; that she said, ‘Very well,’ and immediately gathered up her things; and that they took rooms in a house on Wabash avenue, where they lived until April 27, 1886, when she went to her father's residence, at Toronto, Canada, to remain for a time. This visit to Canada was by mutual agreement of the parties, and while there the boy, Allen L. Elzas, was born, July 18, 1886. The statement and admission of defendant as to the marriage contract were testified to by Minnie Bailey, complainant's sister, as follows: ‘One evening we were sitting in the parlor, and he spoke of having a circumcision performed on the child, as he was a Jew, and my sister objected, and he said: ‘That is my wish. I want it done.’ My sister said: ‘Sam, you want your way in everything.’ And she was quite indignant, and she said: ‘When we were married, we were married without a ceremony, and I do not believe in having him circumcized.’ And he said to me: ‘Minnie, when we were married, we were married without a ceremony.’ I said: ‘As an Episcopalian, we believe in ceremony.’ He said: ‘I am a Jew, and your sister is a Gentile, and it is not necessary. She is my legal wife as much as though we were married by a rabbi. She had a ring from me.’' This ring was worn by the complainant after the marriage. From the time of the removal to Wabash avenue, when the parties began living together, they resided in that place and Hyde Park and other localities in Chicago openly as husband and wife until his desertion of her, in March, 1891. There was disinterested evidence that they were so regarded, and that she introduced him as her husband, and that he spoke of her as his wife, and she testified that he introduced her as such. His physician testified that when he attended him at a sickness in 1890, and asked for his fee, defendant asked him to wait a few moments, and his wife would be in and pay him. He thereupon waited, and the complainant came in and gave him the money. He said that on another occasion, when he was in attendance as a physician, defendant said to him: ‘That will be all right. My wife will pay you. I am a traveling man, and am not here regularly.’ She testified that among others to whom he introduced her was his employer, Joseph F. Ullman. Afterwards Ullman wrote her a letter, which was in evidence, addressing her as ‘Mrs. Simon L. Elzas,’ and inclosing money, at the request of defendant. This letter shows very satisfactorily that he represented to Ullman that complainant was his wife. It is clear that the relationship assumed before the public was that of husband and wife, and every presumption of the law would be that the relationship existed. The law does not presume in favor of vice...