Hunter v. Hunter

• Decision Date: 10 November 1881
• Citation: 1881 WL 10663,100 Ill. 519
• Parties: ELLA B. HUNTERv.JAMES M. HUNTER.
• Court: Illinois Supreme Court

100 Ill. 519

1881 WL 10663 (Ill.)

ELLA B. HUNTER

v.JAMES M. HUNTER.

Supreme Court of Illinois.

Filed at Ottawa Nov. 10, 1881.

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. FRANKLIN BLADES, Judge, presiding.

Mr. C. R. STARR, for the appellant:

The Appellate Court ought to have dismissed the appeal of the appellee, because the case was not ripe for an appeal, the decree of the circuit court being only an interlocutory decree.

The circuit court simply found that the complainant was entitled to a separate maintenance, and continued the case for further testimony for the amount to be paid. Such a decree is only interlocutory, and is not final in any sense.

It is a well settled rule in equity practice, as well as in proceedings at law, that no appeal lies from any interlocutory order. Gage v. Eich et al. 56 Ill. 298; Woodside et al. v. Woodside et al. 21 Id. 207; Pentecost v. Magahee, 4 Scam. 326; Myers et al. v. Manny et al. 63 Ill. 213; Racine and Mississippi Railroad Co. v. Farmers' Loan and Trust Co. et al. 70 Id. 249; Blake v. Blake, 80 Id. 524.

Mr. JAMES N. ORR, for the appellee:

The decree finding that the wife was entitled to a separate maintenance was final, fixing the future status of the parties. The finding the amount to be paid the wife for a separate maintenance is always a secondary part, and is under the control of the court, and subject to alteration as the circumstances may require.

On the husband's appeal from this order, the Appellate Court reversed the decree for separate maintenance, and remanded the cause to the trial court, with directions to dismiss the bill, from which the wife appealed.

We further say that we think this proves beyond question that the decision of the Appellate Court upon this point, when it decided that “the decree of the court below we regard as final,--it fixes the status of husband and wife, and is as final as a decree of divorce would be,” is correct. See Appellate Court opinion, 7 Bradw. 253; also, Blake v. Blake, 80 Ill. 523; Derrick v. Lamar Ins. Co. 74 Id. 404; Burnham v. Lamar Ins. Co. 79 Id. 160.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The bill in this case is for divorce and separate maintenance, and was brought by Ella B. Hunter against James M. Hunter. In the circuit court two issues were submitted to a jury for their judgment on the questions of fact involved:

First--Has defendant been guilty of extreme and repeated cruelty, as charged in complainant's bill; and if not,

Second--Has defendant been guilty of such conduct and treatment towards complainant as justified her in separating herself from and living apart from defendant. As to the first proposition submitted, the jury found defendant not guilty; and as to the second issue, they found defendant had been guilty of such cruelty toward complainant as justified her in separating herself from and living apart from defendant. Thereupon the court entered an order dismissing so much of the bill as prayed...