Forrest v. Fey

• Decision Date: 24 October 1905
• Citation: 75 N.E. 789,218 Ill. 165
• Parties: FORREST v. FEY et al.
• Court: Illinois Supreme Court

218 Ill. 165

75 N.E. 789

FORREST

v.FEY et al.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Circuit Court, Ford County; T. M. Harris, Judge.

Action by Mrs. Lou Forrest against Mrs. Fred Fey and others. From a decree of dismissal, petitioner appeals. Affirmed.

Rehearing denied December 7, 1905.

Schneider & Schneider and W. N. Carpenter, for appellant.

Cloud & Thompson and Welty, Sterling & Whitmore, for appellees.

CARTWRIGHT, C. J.

Appellant filed in the circuit court of Ford county her petition for the assignment to her of dower in 120 acres of land in said county, alleging that she was the widow of Frederick Fey, to whom she was married in Arkansas, and making the appellees, Anna K. Fey, from whom she alleged that Frederick Fey had been divorced before his marriage to her, and the heirs of Frederick Fey and John A. Montelius, defendants. The answers to the petition raised an issue as to the validity of the divorce obtained by Frederick Fey in the chancery court of Arkansas county, Ark., and alleged that it was void for want of jurisdiction in said court. The cause was referred to a special master to take and report the evidence, and upon a hearing of the evidence so taken the petition for dower was dismissed and this appeal was prosecuted.

Frederick Fey was the owner of 200 acres of land in Ford county, in this state, and lived upon it with his wife, Anna K. Fey, and their children. In the spring of 1897 he went to Arkansas, and bought a piece of land and remained there a few weeks. He returned and remained at home with his wife and children until the spring of 1899, when he again went to Arkansas, and came back in the fall of that year. He remained at home with his wife and family for about three weeks, and again left for Arkansas on November 4, 1899. While at home he and his wife, Anna K. Fey, conveyed the farm to John A. Montelius, who gave back the following contracts, one to Frederick Fey, agreeing to convey to him 120 acres upon his obtaining a divorce from his wife and paying her $1,000, and the other agreeing to convey 80 acres to Anna K. Fey when her husband obtained a legal divorce from her:

‘Piper City, Illinois, Nov. 1, 1899.

‘Whereas, Fred Fey and wife have this day deeded to me their farm upon this condition, that in order to settle their differences I am to hold the title to said land until Fred Fey procures a legal divorce from his wife and pays to said Anna K. Fey the sum of one thousand dollars as a settlement in full for her dower interest in the east half of the southeast quarter and the southwest quarter of the southeast quarter of section twenty-two (22), town twenty-six (26) north, range nine (9) east of the third principal meridian. When this is done said party of second part agrees to deed this part of the farm to said Fred Fey.

‘Fred his X mark. Fey.

‘John A. Montelius.

‘Witness: George D. Montelius.’

‘Piper City, Illinois, Nov. 1, 1899.

‘Whereas, Fred Fey and Anna K. Fey have deeded to me their farm in settlement of their differences, as soon as Fred Fey procures a legal divorce party of the second part agrees to reconvey the east half of the northeast quarter of section twenty-two (22), town twenty-six (26) north, range nine (9) east of the third principal meridian.

‘Anna K. Fey.

‘John A. Montelius.’

On April 24, 1900, Frederick Fey filed in the chancery court of Arkansas county, Ark., his bill for divorce from his wife, Anna K. Fey, and on August 9, 1900, a decree of divorce was entered, finding that said Anna K. Fey abandoned said Frederick Fey in March, 1898, and annulling their marriage. On August 14, 1900, Frederick Fey was married to appellant, Mrs. Lou Walker. In October, 1900, Frederick Fey died, and appellant was afterwards married to Morgan Forrest.

The only question which will be considered is whether the chancery court of Arkansas county, Ark., acquired jurisdiction to hear and determine the suit for divorce of Frederick Fey against Catarina Fey, as Anna K. Fey was styled in that proceeding, and all other questions raised and argued by counsel will be ignored. The defendant Anna K. Fey resided in this state and did not appear in the suit. The service upon her was by publicationof a warning order. The statute of Arkansas provides that when it appears by the affidavit of the plaintiff, filed in the clerk's office at or after the commencement of an action, that the defendant is a nonresident of the state, the clerk shall make upon the complaint an order warning such defendant to appear in the action within 30 days from the time of making the order. The affidavit required by the statute before a warning order is made and publication thereof, is jurisdictional, and if the affidavit is not made it is fatal to the jurisdiction. Memphis Land Co. v. Levee District, 70 Ark. 409, 68 S. W. 242. No affidavit was found in the files or of record in the cause, and there was no finding by the court that such an affidavit was ever filed, but there was attached to the bill of complaint a draft of an affidavit, not signed or sworn to, as follows:

‘Now on this day comes the complainant, Frederick Fey, who on his oath says that the foregoing complaint is true. And he further states that the defendant, Catarina Fey, is a nonresident of the state of Arkansas, and asks that a warning order be issued.

‘________.

‘Subscribed and sworn to before me this ___ day of April, A. D. 1900.

‘________.

‘No. 400.-Frederick Fey vs. Catarina Fey.’

Indorsed:

‘Filed in my office and L. C. Smith appointed atty. ad litem, and warning order issued, April 24, 1900.

‘I. C. Gibson, Clerk,

‘H. B. Dudley, D. C.

‘William Carpenter, for Plaintiff.’

The warning order so issued, dated April 24, 1900, and signed by the clerk, was published in a newspaper for four successive weeks. In the decree for divorce the court found that the defendant had been properly served by a warning order published in fit and ample time, but found nothing as to the affidavit.

One of the grounds upon which it is contended that the decree of divorce was void is, that Frederick Fey had no legal ground for a divorce and that the decree was obtained by fraudulent averments and proof. Wh...