American Woolen Co. v. Lesher

• Decision Date: 17 February 1915
• Docket Number: 9658.,Nos. 9657,s. 9657
• Citation: 107 N.E. 882,267 Ill. 11
• Parties: AMERICAN WOOLEN CO. et al v. LESHER et al; VICTOR et al. v. LESHER et al.
• Court: Illinois Supreme Court

267 Ill. 11

107 N.E. 882

AMERICAN WOOLEN CO. et al

v.LESHER et al;

VICTOR et al.

v.LESHER et al.

Nos. 9657, 9658.

Supreme Court of Illinois.

Feb. 17, 1915.

Error to Appellate Court, First District, on Error to Superior Court, Cook County; Wm. E. Dever, Judge.

Consolidated suits by the American Woolen Company and others and by George F. Victor and others against Jacob H. Lesher and others to foreclose two trust deeds. Decrees for the complainants were affirmed by the Appellate Court (187 Ill. App. 259, 266), and the defendant Belle Lesher brings certiorari. Affirmed.

Albert H. Fry, of Chicago, for plaintiff in error.

Moses, Rosenthal & Kennedy and Whitman & Miller, all of Chicago (Walter Bachrach, of Chicago, of counsel), for defendants in error.

FARMER, J.

There cases come to this court upon writs of certiorari issued to review the judgments of the Appellate Court for the First District, affirming decrees of the superior court of Cook county foreclosing two trust deeds, describing different real estate, and both executed by Jacob H. Lesher. In one of the foreclosure proceedings the American Woolen Company of New York et al., were complainants, and in the other George F. Victor et al. were complainants. The plaintiff in error was a defendant to the bills in both cases by the name of Belle Scramlin, alias Belle Lesher. The bills allege she claimed some interest in the premises, but that whatever interest she might have was subordinate to and subject to the liens of the trust deeds. May Charter Lesher was also made a defendant to both bills as the wife of Jacob H. Lesher. As the questions involved in both cases are precisely the same, they were consolidated for hearing, and will be disposed of in one opinion.

Plaintiff in error answered the bills, denying that May Charter Lesher was the wife of Jacob H. Lesher, or ever had been, and alleged she (Belle Lesher) is the true and lawful wife of Jacob H. Lesher; and, while neither admitting nor denying the execution of the trust deeds by Jacob H. Lesher, the answer averred that if any such conveyances were made they were subject to the dower right of plaintiff in error as the lawful wife of Jacob H. Lesher, she never having joined in such conveyances. The causes were referred to a master in chancery to take the testimony and report the same, together with his conclusions of law and fact. On the hearing before the master, plaintiff in error offered in evidence and relied upon a decree of the circuit court of Cook county rendered July 15, 1911, in a separate maintenance suit, in favor of plaintiff in error, as complainant, against Jacob H. Lesher, as defendant.

In that suit plaintiff in error filed a bill against Jacob H. Lesher for separate maintenance, in which she alleged she was his wife, that her husband was living separate and apart from her without her fault, and was then living in adultery with another woman. The bill alleged that the defendant was the owner of real estate, none of which was particularly described, and prayed that a decree be entered against him requiring him to pay such sum for the support and maintenance of plaintiff in error as to the court should seem meet. Jacob H. Lesher answered the bill in that case, denying he was the husband of plaintiff in error, or that he ever had been married to her, and alleged he was the husband of May Charter Lesher, with whom he was then living. A hearing in the circuit court resulted in the defeat of plaintiff in error, and a dismissal of her bill for want of equity. The case went through the Appellate Court and this court. Lesher v. Lesher, 159 Ill. App. 432;Lesher v. Lesher, 250 Ill. 382, 95 N. E. 483. While the appeal was pending in the Appellate Court, a confession of errors and a stipulation that the decree be reversed was filed in the Appellate Court by Jacob H. Lesher. The Appellate Court affirmed the decree, and the case was brought to this court by writ of certiorari, resulting in a reversal of the judgment of the Appellate Court and the decree of the circuit court, and a remanding of the case to the circuit court. On the second trial in the circuit court plaintiff in error was successful, and obtained a decree awarding her separate maintenance in the sum of $156 per year, payable semiannually, as the wife of Jacob H. Lesher.

It was the decree in that separate maintenance suit which plaintiff in error offered and relied upon to establish that she was the wife of Jacob H. Lesher. The master ruled that the decree was not competent evidence, and thereupon plaintiff in error prepared, and asked leave of the court to file, a cross-bill, in which she set up the pleadings, proceedings, and decree in the separate maintenance suit. It was stipulated between the parties that in determining the question of the propriety of the master's ruling in excluding the decree from the evidence it should be considered the same as if the decree had been offered in evidence before the chancellor; it being the intention of the parties to obtain a ruling of the court upon the correctness of the master's ruling before he had reported, in order that a re-reference might be avoided. The court agreed with the master's ruling and denied leave to file the cross-bill. The master reported, recommending decrees of foreclosure as prayed in the bills. In his reports he sets out the claim of plaintiff in error, as alleged in her answer, to be the wife of Jacob H. Lesher, the offer in evidence of the certified copy of the separate maintenance decree by her to establish her claim as such wife, and his action in refusing to admit it as competent evidence. Exceptions to the report by plaintiff in error were overruled, and decrees entered in accordance with the prayer of the bills. Those decrees were affirmed by the Appellate Court for the First District, and the judgments of that court are brought in review here by writs of certiorari.

No other evidence was offered on the hearing to establish the allegations of plaintiff in error's answer that she is the wife of Jacob H. Lesher except the decree in the separate maintenance suit, and the competency and sufficiency of the decree for that purpose is the sole question presented for our decision.

The determination of the question involved in these cases depends mainly upon whether the decree in the separate maintenance suit was a decree in rem and conclusive against all the world as to any and all facts established in that proceeding, or whether it is to be regarded as a decree in an action in personam and binding only upon the parties to the suit and their privies.

A separate maintenance suit is authorized by statute (Hurd's Stat. 1913, c. 68, par. 22), which provides that married women who without their fault are living separate and apart from their husbands may have their action in equity against their husbands for a reasonable support and maintenance while living separate and apart, and in determining the amount to be allowed reference shall be had to the condition of the parties in life and the circumstances of the respective cases. It would seem entirely clear that the object and purpose of the statute are to authorize a wife who without her fault is living separate and apart from her husband to compel him to support her. While the suit can only be maintained by a wife against her husband, the statute was not intended to, and does not purport to, authorize a proceeding to establish the marriage status. The purpose of the act was to enable a wife to secure from her husband money or property for her support. Necessarily, to succeed, she must prove the marriage; but that is only incidental to the primary object of the suit, which is support and maintenance. The decree in such cases is binding upon the parties and their privies, but not upon strangers to it. Levery v. Hutchinson, 249 Ill. 86, 94 N. E. 6, Ann. Cas. 1912A, 74, and Hutchinson v. Hutchinson, 250 Ill. 170, 95 N. E. 143, are not in conflict with this view.

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