Chapman v. Chapman

• Decision Date: 15 June 1889
• Parties: CHAPMAN v. CHAPMAN.
• Court: Illinois Supreme Court

129 Ill. 386

21 N.E. 806

CHAPMAN

v.CHAPMAN.¹

Supreme Court of Illinois.

June 15, 1889.

Appeal from appellate court, First district.

Bill for divorce by Annie Chapman against Edwin T. Chapman. The bill was filed within five months after complainant came to the state. Rev. St. Ill. c. 40, § 2, provides that ‘no person shall be entitled to a divorce who has not resided in the state one whole year next before filing his or her bill or petition, unless the offense or injury complained of was committed within this state, or while one or both of the parties resided in this state.’ In the letter referred to in the opinion, complainant, after speaking of her miscarriage, said: ‘And I made up my mind never to get that way again unless I will have the child. So you can guess what that means. I give you full liberty to go outside, as long as I don't know of it.’

William H. Sisson and Clarence F. Gooding, for appellant.

George A. Meech and William C. Asay, for appellee.

WILKIN, J.

This is a proceeding for divorce, begun in the superior court of Cook county, by appellee against appellant. Two issues are made by the amended bill and answer: (1) Was appellee a resident of Chicago at the time of the alleged adultery by appellant; (2) is the charge of adultery true. The offense is alleged to have been committed out of this state on the 30th day of April, 1886, and other days, up to and including May 9, 1886. It is averred that complainant was during all of said time an actual and bona fide resident of the city of Chiago. The trial resulted in a verdict for complainant. One of the causes alleged on motion for new trial was newly-discovered evidence. The motion was overruled, and a decree rendered upon the verdict in accordance with the prayer of the bill. The defendant appealed, first, to the appellate court, where the decree of the superior court was affirmed, and now to this court.

It is first insisted that the verdict of the jury was contrary to the evidence on both issues. The only testimony introduced as to the residence of the complainant at the time alleged was that of the parties to the bill. Appellant testified that her residence was in New York. His testimony is, however, argumentative, rather than direct, being based upon the theory that her residence must necessarily have been where his was. While it is true, as a general rule of law, that the residence of the wife is fixed by that of the husband, yet it is not true, as contended by counsel, that a wife living separate and apart from her husband may not establish an independent residence. Here both parties swear that there was a separation about April 1, 1886,-he swearing that she then deserted and abandoned him; she, that he declared his purpose not to live with her, if she went to Chicago. Under these facts her residence was no longer the same as his, and she night thereafter lawfully acquire a residence in a state different from that in which he resided, within the meaning of our divorce statute, provided, of course, the change was made in good faith, and not merely for the purpose of instituting divorce proceedings. She denies that even her husband ever had a residence in New York, and her testimony proves the allegation of her bill as to her residence in Chicago. On the evidence introduced the jury was justified in finding the issue as to residence for complainant, though there is much reason to fear that a controlling motive for fixing the Chicago residence was the bringing the suit for divorce.

On the second issue she offered the deposition of James Gordon, who claims to be a detective residing in New York city, and who was hired by her to watch har husband, and procure evidence against him. We give but little credit to his evidence, and, but for the halting, evasive manner in which it is contradicted by appellant, would disregard it altogether. A Mrs. Stella Chapman, wife of a brother of appellant, also living separate and apart from her husband, testified that appellant admitted to her that he had been guilty of adultery. She, too, is contradicted by appellant, but his testimony, as taken by the reporter, shows that...