Lawrence v. Lawrence

Decision Date30 September 1874
Citation1874 WL 9046,73 Ill. 577
PartiesGEORGE W. LAWRENCEv.JULIA S. LAWRENCE.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

The appellant, George W. Lawrence, on the 27th day of August, 1872, filed, in the Superior Court of Cook county, a bill against the appellee, Julia A. Lawrence, for a divorce. She being a non-resident, notice was given by publication, as required by the statute in such cases.

At the October term, 1872, of said court, proof of publication of notice was made, the defendant defaulted, the bill taken for confessed, and a reference made to the master to take proofs. On the coming in of the master's report, the cause was heard thereon, and a decree of divorce entered in favor of the complainant.

At the May term, 1873, of that court, the defendant, Julia A. Lawrence, filed her petition under section 19 of the Chancery Practice Act, setting forth that she had not been served with notice of the divorce suit, but was brought into court by publication of notice only, and asking leave to appear and answer the complainant's bill therein. The petition was granted, and the defendant filed her answer denying the allegations of the bill, except that of marriage.

On the 10th day of July thereafter, the said petition was served upon the complainant, who appeared and moved the court to strike the defendant's petition and answer from the files, and vacate the order allowing the same to be filed, the motion being based upon affidavits filed showing that subsequent to the decree of divorce, and before notice of any application to appear and answer the bill, the complainant had married again. This motion the court overruled. The cause afterward came on for hearing and trial by a jury (the statute requiring the trial to be by a jury), and resulted in a verdict for defendant, and a decree setting aside the decree of divorce and dismissing the complainant's bill. The complainant appealed.

Messrs. WILKINSON, SACKETT & BEAN, for the appellant.

Messrs. GRANT & SWIFT, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

It is admitted by the appellant that the evidence on the part of the defendant on the hearing below was sufficient to sustain the verdict. Evidence there offered by the complainant of the second marriage was excluded and exception taken.

The only ground of error which is urged in argument by appellant is, the order of the court below allowing the defendant to appear and answer in the suit, and contest the same after a decree of divorce had been entered, and taking the subsequent proceedings; and the only question involved is one of statutory construction.

The 19th section of our Chancery Practice Act provides that, when a final decree shall be entered against any defendant without notice other than by publication of notice in a newspaper (as was the case here), and such defendant, his heirs, devisees, executors, administrators or other legal representatives shall, within three years after such decree, appear in open court and petition to be heard touching the matter of the decree, and shall pay such costs as the court shall deem reasonable in that behalf, the person so petitioning may appear and answer the complainant's bill, and thereupon such proceedings shall be had as if the defendant had appeared in due season, and no decree had been made. And if it shall appear, upon the hearing, that such decree ought not to have been made against such defendant, the same may be set aside, altered or amended as shall appear just, otherwise the same shall be ordered to stand confirmed against said defendant. The decree shall, after three years from the making thereof, if not set aside in manner aforesaid, be deemed and adjudged confirmed against such defendant, etc., and at the end of the said three years, the court may make such further order in the premises as shall be required to carry the same into effect.

Another section of the statute provides that, in the case of a non-resident defendant, a copy of the bill, together with a notice of the commencement of the suit, may be delivered to such a defendant, which service shall be as effectual as that made in the usual form, within the limits of this State.

It is claimed that a decree of divorce does not come within this provision.

Section 2 of chapter entitled “Divorces,” when these proceedings were had, provided: “The circuit court, sitting as a court of chancery, shall have jurisdiction in all cases of divorce and alimony by this chapter allowed; and the like process, practice and proceedings shall be had as are usually had in other cases in chancery, except as hereinafter provided.”

Stress is laid by appellant upon the particular terms here used, “usually had,” as implying that the usual practice in chancery cases in general was meant, and not this provision in our Chancery Practice Act, which is unknown in the usual practice of chancery courts. But we apprehend there is to be no special significance attached to the terms “usually had,” as here employed, and that they mean no more than that the usual practice and proceedings in cases in chancery in this State are to be had, and that whatever of such practice or proceedings is prescribed and regulated by statute, is a usual practice or proceeding in such cases.

The words, “heirs, devisees, executors, administrators or other legal representatives,” used in the...

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10 cases
  • Richards v. Richards
    • United States
    • Idaho Supreme Court
    • May 14, 1913
    ... ... 266, 37 N.E. 1017; Day v ... Nottingham, 160 Ind. 408, 66 N.E. 998; Scripture v ... Scripture, 70 Hun (N. Y.), 432, 24 N.Y.S. 301; Lawrence ... v. Lawrence, 73 Ill. 577.) ... AILSHIE, ... C. J. Stewart, J., concurs. Sullivan, J., did not sit at the ... hearing of this case ... ...
  • Stepanek v. Stepanek
    • United States
    • California Court of Appeals Court of Appeals
    • July 18, 1961
    ...on Marriage, Div. and Sep., vol. 1, § 786; Griffith v. Griffith, 162 Ill. 368, 44 N.E. 820; Bascomb v. Bascomb, 25 N.H. 267; Lawrence v. Lawrence, 73 Ill. 577.' [Enphasis Plaintiff, however, argues that from defendant's age, from the testimony (also controverted) relating to his drinking ha......
  • Chapman v. Northern Trust Co.
    • United States
    • Illinois Supreme Court
    • February 15, 1921
    ...largely upon the reasoning of this court in Southern Bank v. Humphreys, 47 Ill. 227,Martin v. Gilmore, 72 Ill. 193, and Lawrence v. Lawrence, 73 Ill. 577. In all of these cases, as we read them, the equity court was not exercising jurisdiction in rem. Those decrees were each in personam, en......
  • Kinney v. Bauer
    • United States
    • United States Appellate Court of Illinois
    • March 31, 1880
    ...v. Mitchell, 43 Ill. 40. Opening the case on petition of a non-resident defendant is a matter of right, not discretion: Lawrence v. Lawrence, 73 Ill. 577. Notice of such petition should be given, and it is the duty of the adverse party then to appear and contest: Bruen v. Bruen, 43 Ill. 408......
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