Boylan v. Boylan

• Decision Date: 11 October 1932
• Docket Number: No. 21274.,21274.
• Citation: 182 N.E. 614,349 Ill. 471
• Parties: BOYLAN v. BOYLAN.
• Court: Illinois Supreme Court

349 Ill. 471

182 N.E. 614

BOYLAN

v.BOYLAN.

No. 21274.

Supreme Court of Illinois.

June 24, 1932.

Rehearing Denied Oct. 11, 1932.

Error to Second Branch Appellate Court, First District, on Error to Superior Court, Cook County; Joseph Sabath, Judge.

Suit by Le Roy B. Boylan against Anna M. Boylan. To review a judgment of the Appellate Court reversing a decree for complainant and remanding case, with directions to dismiss the bill, complainant brings certiorari.

Reversed and remanded, with directions.

Socrates & Davis, of Chicago (Nicholas A. Socrates and Charles P. R. Macaulay, both of Chicago, of counsel), for plaintiff in error.

Barratt O'Hara and Branko M. Steiner, both of Chicago, for defendant in error.

DUNN, J.

The plaintiff in error, Le Roy B. Boylan, filed a bill for divorce from his wife, Anna, in the superior court of Cook county on the ground of desertion. She answered the bill and filed a cross-bill for separate maintenance. The chancellor, upon a hearing, entered a decree of divorce on the complainant's bill, and dismissed the cross-bill for want of equity but awarded the wife $80 a month alimony and $500 for her solicitor's fees in addition to what had been allowed previously. She sued out a writ of error from the Appellate Court, which reversed the decree and remanded the case to the superior court, with directions to dismiss the bill for want of equity, to give a new hearing to the issues on the cross-bill, and in the meantime to make provision for the payment of reasonable alimony and solicitor's fees to the cross-complainant. On the petition of the original complainant a writ of certiorari was awarded to bring the record before this court.

The defendant in error in the Appellate Court filed a plea of release of errors, averring that, after the entry of the decree, the defendant received and accepted from the complainant the sum of $500 which the decree required the complainant to pay to her as solicitor's fees, that she received and appropriated that sum with knowledge of the purpose with which it was so paid and was received by her, and that she thereby confirmed the decree and released any and all errors in the entry of such decree. The plaintiff in error demurred to this plea, and the Appellate Court sustained the demurrer. This action of the court has been assigned as error, and the first question to be determined is therefore the sufficiency of the plea.

The rule of law is well established that a party to a decree cannot avail himself of those parts of the decree which are beneficial to him and afterward prosecute a writ of error to reverse the part of the decree which is unfavorable to him. We have held this to be the law in numerous cases. Morgan v. Ladd, 2 Gilman, 414;Thomas v. Negus, 2 Gilman, 700;Holt v. Rees, 46 Ill. 181;Trapp v. Off, 194 Ill. 287, 62 N. E. 615;Schaeffer v. Ardery, 238 Ill. 557, 87 N. E. 343;Langher v. Glos, 276 Ill. 342, 114 N. E. 590;Fishburn v. Green, 291 Ill. 350, 126 N. E. 115;Hawkins v. County of Lake, 302 Ill. 213, 134 N. E. 84;Scott v. Scott, 304 Ill. 267, 136 N. E. 659;Gridley v. Wood, 305 Ill. 376, 137 N. E. 251. In Holt v. Rees, supra, in giving the reason of the rule, it is stated: ‘If a decree is to be reversed, the parties should be placed in statu quo. It would be manifestly unjust to permit Clapp to take all the money the decree gives him, and then speculate upon the possibilities of getting more by means of a writ of error. Suppose the decree should be reversed, and on another hearing, the court, upon some new evidence, should find due him a still smaller sum. This might easily happen. * * * But if paid into court under the pressure of a decree, and after a reversal of such decree, it is ascertained by the court that its former decree was for too large a sum, the party having paid would be entitled to a restoration of the excess. * * * We are clearly of opinion, that a party cannot accept money, directed to be paid him by a decree, and then ask a reversal on the ground that it did not give him enough. His acceptance was a ratification.’

The defendant in error here admits the rule is that a party to a decree cannot avail himself of the part of the decree favorable to him and appeal from another part unfavorable to him, but her counsel contend that there are exceptions to the rule, and it does not apply where the parts of the decree are separate and independent and the receipt of a benefit from one part is not inconsistent with an appeal from another. Whatever may be the exception to the rule, if any (and this we do not decide), in this case the court in a single decree decided the merits of the whole case against the defendant in the circuit court,...