Childress v. Smith

• Decision Date: 14 February 1936
• Docket Number: No. 23154.,23154.
• Citation: 200 N.E. 179,362 Ill. 458
• Parties: CHILDRESS v. SMITH et al.
• Court: Illinois Supreme Court

362 Ill. 458

200 N.E. 179

CHILDRESS

v.SMITH et al.

No. 23154.

Supreme Court of Illinois.

Feb. 14, 1936.

Error to Circuit Court, Lawrence County; Julius C. Kern, Judge.

Suit by Stella Childress against Bonnie Smith, Sadie Nastold, Rudolph Childress, and another, in which defendants Smith and Nastold filed a cross-bill. Decree dismissing complainants' amended bill and finding for cross-complainants, and defendant Rudolph Childress brings error.

Affirmed.

Sumner & Lewis, of Lawrenceville, for plaintiff in error.

Shaw & Gee, of Lawrenceville, for defendants in error.

FARTHING, Justice.

Stella Childress filed her amended bill for partition in the circuit court of Lawrence county alleging that Nal R. Childress died intestate on November 21, 1931, leaving her as his widow, Bonnie Smith and Sadie Nastold his daughters, and Harry Max Childress and Rudolph Childress, plaintiff in error herein, his sons, as his only heirs at law; that he died seized of 127 acres of land in Lawrence county; that she was entitled to an undivided one-third interest, and each of his children was entitled to an undivided one-sixth interest in the land, subject to her homestead right therein. The four children were made defendants, and a guardian ad litem was appointed for plaintiff in error who was a minor.

Bonnie Smith and Sadie Nastold filed a joint answer and a cross-bill denying that Stella Childress was the widow of deceased, and that Harry Max Childress and Rudolph Childress were heirs at law of their father. They further alleged that on July 5, 1900, Stella Childress was married to Frank E. Tipton and that he divorced her in McLean county on November 17, 1905, for adultery. They alleged that complainant on April 20, 1907, within two years after her divorce from Tipton married their father at Vincennes, Ind., while both were residents of this state. They alleged that on September 25, 1920, complainant married O. L. Tollison in Mississippi, and that by reason of this marriage, her marriage with Nal R. Childress was not validated or confirmed by an act of the General Assembly of Illinois approved June 30, 1923. Laws 1923, p. 327 (Smith-Hurd Ann.St. c. 40, § 2).

Plaintiff in error, in the answer filed by his guardian ad litem, alleged that Bonnie Smith and Sadie Nastold were the children of a marriage between Emma J. Snyder and Nal R. Childress which was prior to that between complainant and Childress. It alleged that the marriage between complainant and the deceased in Indiana was valid there, and that it was, therefore, valid everywhere; that each of the contracting parties believed that the marriage was valid, until they were informed that it was not, in a divorce proceeding in the circuit court of Lawrence county by the complainant against Childress, which proceeding was dismissed, when it was discovered that the Indiana marriage was void. The answer alleged that the marriage in Mississippi was absolutely void in that state, and therefore void in every other state, because complainant had a husband living and undivorced under the laws of Indiana, and that the Illinois statute above referred to validated the Indiana marriage.

On October 24, 1932, the court entered a decree dismissing the amended bill of complaintfor want of equity. It found the equities to be with the cross-complainants and that the marriage of Stella Childress and Nal R. Childress in Indiana was void in Illinois; that the marriage of Stella Childress with O. L. Tollison in Mississippi was legal and binding in Illinois; that Harry Max Childress and plaintiff in error were not entitled to any interest in the premises; and that cross-complainants were the only heirs at law of Nal R. Childress.

On June 4, 1935, Rudolph Childress became of age. He obtained an order of severance and sued out this writ of error under section 117 of the Practice Act of 1907 (Smith-Hurd Ann.St. c. 110, Appendix, § 117), which provided that the time a minor is under disability shall be excluded from the computation of the two-year limitation upon bringing a writ of error.

It is conceded that complainant and Childress went to Indiana to evade section la of the Illinois Divorce Act which forbade and punished the remarriage of divorced persons (except to each other) within the space of two years where the cause for divorce was adultery and declared such marriages ‘absolutely void.’ Laws 1905, p. 194 (Smith-Hurd Ann.St. c. 40, § 2 note). The question presented for decision is whether the Indiana marriage was valid when...