Chestnut v. Chestnut

• Decision Date: 31 January 1875
• Citation: 77 Ill. 346,1875 WL 8321
• Parties: ALEXANDER R. CHESTNUTv.EMILY CHESTNUT.
• Court: Illinois Supreme Court

77 Ill. 346

1875 WL 8321 (Ill.)

ALEXANDER R. CHESTNUT

v.EMILY CHESTNUT.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.

This was a proceeding by scire facias, commenced by Emily Chestnut, against Alexander R. Chestnut, upon a supposed record of an order for the payment of temporary alimony.

Messrs. MORRISON, WHITLOCK & LIPPINCOTT, for the appellant.

Messrs. DUMMER & BROWN, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This proceeding was commenced by scire facias, on what purports to be a record in the Morgan county circuit court. During the pendency of a suit brought by defendant in this action against plaintiff, for divorce, the court made an order for temporary alimony. The order directs the payment of certain sums of money to the wife, for alimony, at the rate of $1600 per annum, from the date of the service of process until the termination of the suit; that the sum of $400 of the amount so allowed be paid her within twenty days, and thereafter, computing from the 19th day of June, 1873, there be paid to her, quarterly, the sum of $400, and should the suit be disposed of before the expiration of any quarter, then a ratable proportion only should be paid. It is averred, this order was made on the 12th day of August, 1873, and that on the next day, complainant, by leave of court, dismissed his bill. It is further averred, there was due plaintiff, under this order, $639.88, when this proceeding was commenced, no part of which had been paid.

Defendant filed two pleas, in substance the same, in which it is averred the order allowing temporary alimony, as set forth in the scire facias, was in fact made on the 16th day of August, 1873, after the bill had been dismissed on the 13th day of the same month, and at that time the court had no jurisdiction of either the person of defendant or the subject matter of the suit. The replication is, that the record, as set out, remains in the Morgan county circuit court, which plaintiff is ready to verify, and prays the record may be inspected. Defendant interposed a demurrer to the replication, which was carried back, and by the court sustained to both pleas. That decision is assigned for error.

The rule is, the demurrer may be carried back, except where the general issue may intervene, and made to reach the first defect in pleading, no matter by which party committed. On this principle, we are of opinion, the demurrer should have been carried back and sustained to the scire facias.

An additional record is recited in the scire facias, in substance that the record previously alleged to have been made on the 12th day of August, 1873, was signed on the 16th day of August, after the bill had been dismissed on the 13th day of August, by complainant, under leave of the court, and that the records show, substantially, the opinion of the court as announced on the 12th day of August, the minutes of the decision having been entered on the judge's docket on that day. What was intended to be expressed by this order, is involved in some obscurity; but if it means anything, it is, that no order had been entered of record allowing alimony, on the 13th day of August, when complainant obtained leave and dismissed his bill. The court had announced its opinion on the motion for alimony, but no order in fact had been entered. No order having been signed or entered of record, it seems to us the fact the bill was dismissed by leave of court, suspended all further action. The court had then lost all jurisdiction of the persons of the parties or the subject matter of the suit.

But aside from this view, upon principle, it would appear the dismissing of the bill would operate to revoke the order allowing temporary alimony. Such a provision is for her immediate support, and to enable her to meet the expenses of her defense pending the litigation. When the bill was...