McKenna v. McKenna

Decision Date17 June 1899
PartiesMcKENNA v. McKENNA.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error from appellate court, First district.

Bill in equity by Julia McKenna against James McKenna. From a decision of the appellate court reversing a decree for complainant (73 Ill. App. 64), she brings error. Affirmed.

William A. Doyle and J. D. Andrews, for plaintiff in error.

Finley Scruggs, for defendant in error.

CRAIG, J.

This was a bill filed to the July term, 1896, of the circuit court of Cook county for separate maintenance by one Julia McKenna, the plaintiff in error, against James McKenna, the defendant in error, basing her claim on an alleged common-law marriage contract made in 1862. The defendant in error filed his answer, denying the allegations in the bill that he was married to the plaintiff in error, and denying that he lived and cohabited with her since the year 1862, or at any time previous thereto, as his wife. He alleges that after the great Chicago fire, in October, 1871, he rented a cottage, and placed the complainant in it as housekeeper, where they lived for two or three years, and then moved into a flat, where they lived in the same manner until about 1881, but avers they did not cohabit as husband and wife. The answer was amended, and a replication was filed thereto. A motion was made for temporary alimony and for solicitor's fees, and an order was entered referring the motion to the master in chancery to take proof on the question of complainant's solicitor's fees. Exceptions were taken to the master's report, and a rereference was made to the master, to which report of the said master exceptions were filed, which were overruled. A trial was had before the circuit court, which entered a decree granting the relief prayed for in the bill. From this decree an appeal was taken to the appellate court for the First district, which reversed the decree of the circuit court. Plaintiff in error has sued out this writ of error from this court, and asks for the reversal of the judgment of the appellate court.

The principal question to be determined in this case is, was there a valid contract of marriage made between these parties, according to the common law? We held in Port v. Port, 70 Ill. 484, that a marriage without observing the statutory regulation, if made according to the common law, will still be a valid marriage. We there said (page 486): ‘We are inclined to the opinion, supported, as it is, by the statements of many of the most eminent text writers, as well as by the decisions of courts of the highest respectability, that, inasmuch as our statute does not prohibit or declare void a marriage not solemnized in accordance with its provisions, a marriage without observing the statutory regulations, if made according to the common law, will still be a valid marriage, and that, by the common law, if the contract be made per verba de praesenti, it is sufficient evidence of a marriage, or, if it be made per verba de futuro cum copula, the copula is presumed to have been allowed on the faith of the marriage promise, and that so the parties, at the time of the copula, accepted of each other as man and wife. 1 Bish. Mar. & Div. §§ 253, 254. This is, however, merely a rule of evidence, and it is always competent, in such cases, to show by proof that the fact was otherwise. 1 Bish. Mar. & Div. § 259; Myatt v. Myatt, 44 Ill. 473;Conant v. Griffin, 48 Ill. 410. The rule is well illustrated by the language of Lord Campbell in Rex v. Millis, 10 Clarke & F. 534, 782, quoted by Bishop in the paragraph last referred to: ‘If the woman, in surrendering her person, is conscious that she is committing an act of fornication, instead of consummating her marriage, the copula cannot be connected with any previous promise that has been made, and marriage is not thereby constituted.’' By the law of England, marriage is considered in the light of a contract, and therefore the ordinary principles which attach to contracts in general are, with some exceptions, applied to it. Broom, Leg. Max. *486; 2 Steph. Comm. (5th Ed.) 254; 1 Bl. Comm. (21st Ed.) 433. It differs from other contracts only in this: that it cannot be rescinded at the will of the parties. Marriage was held to be a civil contract by this court in Cartwright v. McGown, 121 Ill. 388, 12 N. E. 737, as follows (page 398, 121 Ill., and page 739, 12 N. E.): ‘A marriage is a civil contract, made in due form, by which a man and woman agree to taken each other for husband and wife during their joint lives, unless it is annulled by law, and to discharge towards each other the duties imposed by law upon such relation. Each must be capable of assenting, and must, in fact, consent, to form this new relation. * * * When the consent to marry is manifested by words de praesenti, a present assumption of the marriage status is necessary.’ And, quoting from Van Tuyl v. Van Tuyl, 57 Barb. 237, it was said: ‘On the other hand, it is not sufficient to agree to present cohabitation and a future regular marriage,’-citing Robertson v. State, 42 Ala. 509; Duncan v. Duncan, 10 Ohio St. 182; Beverson v. Beverson, 47 Cal. 621;Fryer v. Fryer, Rich. Eq. Cas. 85; Van Tuyl v. Van Tuyl, 57 Barb. 235; 1 Bish. Mar. & Div. § 262. Again, on page 401, 121 Ill., and page 741, 12 N. E., it was said: ‘In the absence of consent, the status of marriage is never created by any government. The law compels no one to assume the matrimonial status. Without assent, no statute or constitution can create this relation,’-citing Dickerson v. Brown, 49 Miss. 373.

It appears from the evidence that plaintiff in error an defendant in error first became acquainted in 1858 at the Richmond House, in Chicago, she being employed as a seamstress and he as bartender. At this time the acquaintance was merely casual, and not intimate. When the Sherman House opened, in 1861, both removed there,-she as nurse for two little girls of the proprietor, and he attending the bar of the house. Defendant in error says they both ate at the same table in the employés' dining room, and became more intimately acquainted. In the dining room, he says, she would ask him for a little whisky as medicine, she being troubled with indigestion; that there was a back stairway leading down in a hall that led to the saloon, and he would meet her at the stairway and give it to her; that the meeting at the stairway continued for several months. Plaintiff in error denies he gave her whisky, and says a gentleman called on her once and took her out, and defendant in error called in the evening and wanted to know who the gentleman was she was out with; that she told him he was a friend, and he said, ‘Either him or I will be coming here.’ She says she told him the object he was coming for was not his (McKenna's) object, and he said, ‘You don't know;’ that he said he had a sister to educate, and that, if he was not in a hurry, he did not see why she should be; that after this she only went with the defendant in error. This is, briefly, a statement of their relations prior to the alleged contract of marriage. Plaintiff in error's version of the facts which she claims constituted a contract of marriage is as follows: That one night in the early summer of 1862 McKenna came up to her room, occupied by the two children and herself, and insisted on staying there, and ‘I told him he could not stay there, but he said he would not leave the room that night. I said he must leave the room. He said he would not. I told him he would have to wait until we was married, and he lifted up his hands, and he said that we were man and wife now, ‘So help me God, we were man and wife.’' She says he stayed there all night, and they occupied the same bed; that she never had sexual intercourse before this time. The court, during the course of the trial, asked the plaintiff in error this question: ‘Mrs. McKenna, in 1862 or 1863, when you say Mr. McKenna came to your room one night, when you speak of being married or being husband and wife, state just what he said at that time.’ Her answer was: He said he would not leave the room, and I said he could not stay there. He said he would. I said he could not stay there, and he said, ‘Well, we are as much man and wife now; I take you as man and wife, so before God and man,’ and he lifted his hands. Well, I said, if he was to stay in that manner, certainly I would let him stay.' This was all her testimony on the question of there being a marriage contract. Defendant in error denies there was anything said there at that time in relation to marriage. His testimony as to what occurred is as follows: ‘The meeting at the stairway continued for several months. They closed up that stairway then. It ceased to be a passageway, and she asked me again for the whisky, and asked me to bring it to her room. There was no other place that I could meet her or see her to bring it to her, and I came up at 10 o'clock, and by that time the children would be asleep. She told me to speak low. The children were asleep. There was no gas lit,-no light in the room. She had on a sort of a wrap, and we got fooling, and I took hold of her, and she thanked me for the whisky and kissed me, and as we went by the door the bed sat on the side, and I leaned her over on the bed and laid on the bed for a few minutes, and we got up and took off our clothes and went to bed. Q. What did she say? A. She said nothing. Q. Did she say anything about taking off her clothes? A. She said, ‘Let me get up and take off the rest of my clothes.’ That was about all. Q. Was there anything said there about that time in relation to any marriage? A. Lord bless you! not a word. The two children were asleep in the bed. There was their bed there [indicating], and hers was at the other end of the hall [indicating]. Stayed there an hour and a half or two hours, and got up and left, and went to my room. We whispered; didn't talk at all; afraid to talk; afraid of disturbing the children. ...

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