Bobowski v. Bobowski

• Decision Date: 22 December 1909
• Citation: 242 Ill. 524,90 N.E. 361
• Parties: BOBOWSKI v. BOBOWSKI.
• Court: Illinois Supreme Court

242 Ill. 524

90 N.E. 361

BOBOWSKI

v.BOBOWSKI.

Supreme Court of Illinois.

Dec. 22, 1909.

Error to Circuit Court, Du Page County; L. C. Ruth, Judge.

Suit by Franciszka Bobowski against Stanislau Bobowski. There was a decree for plaintiff, and defendant brings error. Affirmed in part, reversed in part, and remanded.Robert Zaleski, for plaintiff in error.

S. L. Rathje and Charles W. Hadley (Carnahan, Elsdon & Slusser, of counsel), for defendant in error.

Defendant in error filed a bill for divorce from plaintiff in error in the circuit court of Du Page county. The bill charged plaintiff in error with drunkenness and extreme and repeated cruelty. The parties were married in 1887 and had four children, three of whom were minors at the time the bill was filed. The bill alleged they all resided with defendant in error, and since 1892 plaintiff in error had not contributed anything toward the support of his wife and children excepting the raising of some vegetables on the lots that constituted their home; that the home was situated on lots 53 and 54 in Gostyn, an addition to Downers Grove, and was purchased partly with the money of defendant in error; and that she supposed, and was so informed by her husband, that the deed was made to them as tenants in common, but it was, in fact, made to plaintiff in error as sole grantee. The bill alleges: That the parties borrowed $650 from the Downers Grove Loan & Homestead Association and used the money in erecting a dwellinghouse upon said lots, which has since its completion been occupied by the family as a home; that the money so borrowed was payable in monthly installments, and said installments were paid for one year by plaintiff in error, but thereafter they were paid, until the loan was discharged, by defendant in error from money earned by her by her own labor. The bill further alleges that the parties later purchased two other lots as tenants in common, paying therefor $50. In addition to praying for divorce, the bill prayed for alimony in a lump sum, that the household goods be decreed to defendant in error, and the real estate be decreed to her as alimony.

Plaintiff in error answered the bill denying the material allegations, and a trial was had without a jury and a decree entered in favor of defendant in error, granting the divorce on the ground of extreme and repeated cruelty and awarding her the custody of the three minor children. The decree found: That the legal title to the two lots upon which the dwelling house was situated was in plaintiff in error; that they were worth $1,350; that defendant in error and the children occupied the lower story of the dwelling house and plaintiff in error the upper story; that defendant in error had paid more than one-half of the cost of the property occupied as a homestead and was the owner of an undivided one-half thereof. The decree finds the other two lots were owned by the said parties as tenants in common; that they were vacant and unoccupied and worth about $150; that plaintiff in error was 56 years old, and able to earn, as a furrier and skin dresser, $350 a year; that defendant in error was 44 years of age; and that justice requires a gross sum to be decreed to her in full satisfaction of her claim for alimony. It was therefore ordered: That she have as her absolute property the household goods and effects; that plaintiff in error pay to her in full of all alimony, within 90 days, the gross sum of $750 and the further sum of $100 for solicitor's fees; ‘that said alimony and solicitor's fees are hereby made a lien upon the said real estate of the said defendant; that the provision herein made for alimony shall be in bar of complainant's right of dower and homestead in the property of the defendant.’ The costs of the suit are adjudged against plaintiff in error, and the decree orders that an execution be awarded defendant in error for the collection of the alimony, solicitor's fees and costs, said execution to issue to the sheriff as upon a judgment at law; and it is further ordered and adjudged that making the alimony and solicitor's fees a lien upon the real estate of plaintiff in error and in awarding execution for their collection shall not deprive the court of the power to enforce their payment by contempt proceedings.

This decree was entered on the 8th of November, 1907. Plaintiff in error failed to comply with the decree by the payment of the alimony and solicitor's fees, and an execution was issued to the sheriff of Du Page county and by him levied on all the interest of plaintiff in error in the four lots mentioned. The premises were advertised and sold by the sheriff at public sale to defendant in error for $860. A certificate of purchase was issued to her, and, no redemption having been made within fifteen months, the sheriff made her a deed July 2, 1909. On the 14th of the same month defendant in error demanded possession of the premises; but plaintiff in error refused to give possession, and on the 20th of July defendant in error filed a petition in the circuit court setting out the failure of plaintiff in error to pay the alimony and solicitor's fees, issuing of execution, sale thereunder, and sheriff's deed. The petition prayed that plaintiff in error be ruled to show cause why he should not surrender possession, and that the court would order a writ of assistance against him. The petition also prayed that plaintiff in error be ruled to show cause why he should not be dealt with for contempt of court in refusing to give possession of the property and in refusing to obey the orders and directions of the decree. An order was entered upon the filing of that petition, which will be more fully referred to hereafter. Among other things, it commanded plaintiff in error to show cause July 27, 1909, why he should not surrender the premises to defendant in error immediately, and why he should not be held in contempt for failing to pay $5 interest that had accrued upon the amount allowed for alimony before the sale and the costs of suit. A copy of this order and the petition under which it was entered was served on plaintiff in error on the day the petition was filed and the order entered. He failed to appear on the day fixed, and a decree was entered commanding him, within 10 days after being served with a copy of it, to surrender and deliver up possession of the premises, and that within 10 days he pay the balance of $5 due as interest on alimony and the costs of the suit. A copy of this decree was served on plaintiff in error by the sheriff of Du Page county August 5, 1909. Thereupon this writ of error was sued out.

FARMER, C. J. (after stating the facts as above).

The principal errors assigned are: First, that the decree for divorce was not justified by the evidence, and the court erroneously awarded alimony in a lump sum; second, that the court had no jurisdiction to entertain the petition filed July 20, 1909, and enter decree thereon, because the term at which the final decree for divorce and alimony was entered had elapsed; third, the decree under the petition of July 20th was erroneous, for the reason that plaintiff in error had an estate of homestead in the premises which he could not be deprived of by sale under the execution, and his homestead was not set off before levy and sale under said execution.

As there is no certificate of evidence in the record, it is claimed that there must be a recital of sufficient facts in the decree to sustain it. If this contention be correct, we think the facts found in the decree fully justify it. The decree finds and recites: That in 1892 the plaintiff in error, without cause, struck defendant in error with his fist, as alleged; that in February, 1907, without just cause, he assaulted her and willfully struck her violent blows; and that on divers other occasions he was guilty of extreme cruelty by assaulting and doing her personal violence. The fact that only two dates are given when plaintiff in error committed the acts of violence and cruelty against defendant in error, and that one of them was 15 years before the trial, does not render the finding insufficient, supplemented, as it is, by the further finding that plaintiff in error had been guilty of extreme cruelty to his wife by assaulting her on divers other occasions and doing her personal violence, and the sufficiency of these findings of fact is not destroyed because the dates of these acts are not given. Section 18 of our statute on divorce (Hurd's Rev. St. 1908, c. 40) authorizes the court, when a divorce is decreed, to make such order touching alimony as from the circumstances of the parties and the nature of the case shall be reasonable and just, and under that statute it has been held that, if the justice of the case requires it, a sum in gross may be decreed in satisfaction of alimony, and a portion of the husband's real estate may be decreed to the wife. Dinet v. Eigenmann, 80 Ill. 274;Cole v. Cole, 142 Ill. 19, 31 N. E. 109,19 L. R. A. 811, 34 Am. St. Rep. 56. We hold therefore that the errors assigned upon the decreee for divorce are not well taken.

We are also of the opinion that the contention of plaintiff in error that the court had no jurisdiction, at a term subsequent to that at which a decree for divorce and alimonywas entered, to make orders for the...