Evans v. Woodsworth

• Decision Date: 22 December 1904
• Parties: EVANS v. WOODSWORTH et al.
• Court: Illinois Supreme Court

213 Ill. 404

72 N.E. 1082

EVANS

v.WOODSWORTH et al. ^*

Supreme Court of Illinois.

Dec. 22, 1904.

Appeal from Appellate Court, First District.

Suit by James G. Evans against Effie W. Woodsworth and others. From a judgment of the Appellate Court affirming a decree dismissing the bill, complainant appeals. Affirmed.

D. H. Stapp and John M. Hess (A. N. Waterman, of counsel), for appellant.

Wharton Plummer and George W. Plummer, for appellees.

WILKIN, J.

On March 20, 1893, Isabella G. Evans filed her bill for divorce in the superior court of Cook county against her husband, James G. Evans, on the ground of desertion and extreme and repeated cruelty. She also then filed her affidavit that the defendant was a nonresident of this state and that his place of residence was unknown to her and upon diligent inquiry could not be ascertained. Service was obtained by publication, and on May 13, 1893, upon a hearing, as is claimed by the appellant, that bill was dismissed, without costs. On September 27, 1893, she filed a second bill for divorce in the circuit court of that county, which was substantially, if not literally, a copy of the bill previously filed, except as to the title of the court, and she then filed her affidavit of his nonresidence substantially as in the former case, except that it stated that his last known place of residence was San Francisco, Cal., and upon that affidavit notice of publication was duly made. On December 11, 1893, upon the defendant's default and a hearing, she obtained a decree as prayed. On August 10, 1894, she died seised of certain real estate, which by her last will she devised to her sister, Effie W. Woodsworth, for life, with remainder to the two infant daughters of said sister. Her will was duly admitted to probate February 13, 1895, and Mrs. Woodsworth appointed administratrix with the will annexed. On June 4, 1896, more than 2 1/2 years after the decree of divorce had been rendered, the husband, James G. Evans, filed this bill, making the appellees defendants, in which he alleged that the affidavits of nonresidence filed by his wife in the superior court, and also in the circuit court, were falsely and fraudulently made, for the purpose of imposing upon the court and to give it apparent and colorable jurisdiction; that the decree of divorce was fraudulent and void, being procured by the deception practiced upon said court, and that the same is a cloud upon his interest in any estate left by his said wife; that the desertion and cruelty charged in the bill for divorce were false. The prayer of the bill was that the decree of divorce be set aside and annulled. The adult defendants filed their joint and several answer, denying each material allegation of the bill, and in effect pleading laches on the part of the complainant. The guardian ad litem appointed for the infant defendants filed his answer, denying generally the averments of the bill. The cause was heard in open court on oral and documentary evidence, and decided against the complainant. He thereupon asked leave to amend his bill, so as to make it conform to his proofs. That motion was not then disposed of, but the cause was referred to a master to examine the testimony and report to the court whether the amendment conformed thereto. The master subsequently made his report, in which he found that the allegations of complainant's amended bill were not supported by the evidence; reporting upon the whole cause adversely to the complainant. To his report objections were filed and overruled. Exceptions were then heard by a judge other than the one who first heard the cause, and overruled, the report approved, and the motion to amend the bill so as to conform to the testimony denied. On June 15, 1903, the case came on for final hearing before the chancellor who first heard the testimony, and he dismissed the amended bill for want of equity. After the filing of the record in the Appellate Court a third chancellor ordered the record to be so amended as to show that the proposed amendment was presented November 2, 1903, nunc pro tunc as of November 8, 1897. The Appellate Court for the First District having affirmed the decree of the circuit court, this appeal is prosecuted.

It is insisted by the appellant that his wife was guilty of fraud in making the affidavit of his nonresidence on each of the bills for divorce, which she knew to be false, and in procuring the decree in the circuit court against him for desertion, when she knew there was no basis for such charge; also, that the decree of the superior court, under the bill there filed, is res judicata, and therefore the decree of the circuit court sought to be set aside by this bill should be held absolutely void. The evidence introduced upon the hearing upon the allegations of fraud as to the affidavits of nonresidence was in irreconcilable conflict. There is evidence in the record tending to prove that the wife knew that her husband was not a nonresident of Illinois, but there is also much testimony to the contrary. As to the desertion, it does clearly appear that...