Harper v. Rooker

• Decision Date: 30 September 1869
• Parties: JOHN T. HARPER et al.v.MELISSA ROOKER.
• Court: Illinois Supreme Court

52 Ill. 370

1869 WL 5450 (Ill.)

JOHN T. HARPER et al.

v.MELISSA ROOKER.

Supreme Court of Illinois.

September Term, 1869.

APPEAL from the Circuit Court of Woodford county; the Hon. SAMUEL L. RICHMOND, Judge, presiding. The opinion states the case.

Messrs. HARPER & CASSELL, Messrs. INGERSOLL & MCCUNE and Mr. S. D. PUTERBAUGH, for the appellants.

Messrs. JOHNSON & HOPKINS, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that on the third day of October, 1868, Nelson Rooker filed a bill in the Woodford circuit court against appellee, for the purpose of obtaining a divorce. Appellee answered the bill, and filed a cross bill, in which she made appellant and others defendants, and prayed a divorce and for alimony. On a hearing upon the original and cross bills, the court rendered a decree, granting a divorce to appellee, and allowing her $12,000 alimony, and appellants were ordered to pay appellee $4578 as a part of the amount.

After filing the original bill, and before the cross bill was filed, on the thirteenth day of October, 1868, appellee commenced a suit against her husband for separate maintenance, under the law of the fifth of March, 1867, and sued out a writ of ne exeat, requiring him to give bond in the sum of $5000.

He was arrested, and appellant, Harper, became his security on the ne exeat bond in that sum. Emmet Hickox, one of the defendants, placed in the hands of appellants $5000 in United States bonds to indemnify Harper for becoming security for Nelson Rooker on the ne exeat bond, and to secure Ingersoll, Harper & Cassell their attorneys' fees in the two suits then pending.

The suit commenced by appellee has not been tried, and no order made formally disposing of it. This case is brought to this court by appeal, and it is assigned for error, that the court below decreed that appellants should pay to appellee $4578, the balance that remained of the bonds after deducting attorneys' fees. It is urged that the decree is wrong, inasmuch as the suit for separate maintenance, so far as this record discloses, remains undisposed of in the court below. That court, on the evidence, found that the bonds placed in the hands of appellants by Hickox, belonged to Nelson Rooker, and he, having fled the country, as is conceded, it was decreed to appellee as part of her alimony.

It is not contested that, had the suit for separate maintenance been dismissed, the decree would have been proper, and the...