Leland v. Leland

• Citation: 150 N.E. 270,319 Ill. 426
• Decision Date: 04 February 1926
• Docket Number: No. 16916.,16916.
• Parties: LELAND v. LELAND et al.
• Court: Supreme Court of Illinois

319 Ill. 426

150 N.E. 270

LELAND

v.LELAND et al.

No. 16916.

Supreme Court of Illinois.

Dec. 16, 1925.

Rehearing Denied Feb. 4, 1926.

Error to Third Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Charles M. Foell, Judge.

Bill for divorce by Albert R. Leland against Charlotte C. Leland. Decree dismissing bill for want of equity was reversed by Appellate Court for First District, with directions to enter decree as prayed for in bill of complaint, whereupon Carl D. Case, named as corespondent, sued out writ of error.

Writ of error dismissed.

Frederick A. Brown and Delbert A. Clithero, both of Chicago, for plaintiff in error.

Milford H. Olds, of Chicago, for defendant in error.

HEARD, J.

Defendant in error, Albert R. Leland, filed in the superior court of Cook county his bill for divorce, charging that his wife, Charlotte C. Leland, had committed adultery with one Carl. A default on personal service was entered in the cause and a hearing was had before the judge of the superior court to whom the case had been assigned. On that hearing it was developed that the person named as Carl in the bill of complaint was plaintiff in error, Carl D. Case. After the hearing, and before a decree was entered, Case filed in the cause a sworn petition for permission to appear as amicus curiae, in which petition he denied that he had ever at any time been guilty of adultery with Mrs. Leland. The court refused to appoint Case as amicus curiae, but did appoint Frederick A. Brown as such and reopened the case. Mrs. Leland, being subpoenaed as a witness by amicus curiae, appeared in person and by an attorney. A full hearing was then had before the court, at which hearing Case testified, and denied that he had ever had any improper relations with Mrs. Leland, while she testified to her own guilt and called five witnesses in her effort to substantiate the claim made by her husband. It was the contention of Case and amicus curiae that Mrs. Leland was suffering from delusions and hallucinations, and many witnesses were offered, both expert and lay, upon this question. The trial court, after hearing the evidence and seeing the witnesses, found that defendantin error was not entitled to a divorce and dismissed the bill for want of equity. From the decree dismissing the bill for want of equity defendant in error appealed to the Appellate Court for the First District, where the decree of the superior court was reversed and the cause remanded to that court, with directions to enter a decree as prayed for in the bill of complaint. Case thereupon sued out of this court a writ of error, making Mrs. Leland coplaintiff in error. In this court, upon motion, a severance was had; Case remaining as sole plaintiff in error, while Mrs. Leland filed a brief in support of the finding of the Appellate Court.

[1][2] The first question which naturally presents itself in this case is whether or not plaintiff in error has a right, under the laws of the state of Illinois, to prosecute this writ of error. There is no statute in this state giving him such right. It has been held by this court that to entitle a person to sue out a writ of error he must be a party or a privy to the record, or be one who is injured by the judgment or who will be benefited by its reversal, or is competent to release errors. People v. Harrigan, 294 Ill. 171, 128 N. E. 334;People v. Lower, 254 Ill. 306, 98 N. E. 557;People v. O'Connell, 252 Ill. 304, 96 N. E. 1008. Plaintiff in error was not a party to the divorce proceedings, a privy to the record, or a person competent to release errors in the divorce case. It is claimed by him, however, that he is a person who was injured by the decree and therefore entitled to prosecute a writ of error. In Wightman v. Yaryan Co., 217 Ill. 371, 75 N. E. 502,108 Am. St. Rep. 258,3 Ann. Cas. 1089, it was held that the right of a third party to intervene in a suit in equity is governed by the general rules of equity, and that the interest which will entitle a third person to intervene must be an interest in the subject-matter of the suit of such an immediate character that the intervener will gain or lose by the direct legal operation of the decree. In White Brass Castings Co. v. Union Metal Manf. Co., 232 Ill. 165, 83 N. E. 540,122 Am. St. Rep. 63, it was held that the prejudice which will authorize the suing out of a writ of error must be such that the person suing out the writ takes or loses something directly by the judgment or decree. In Strong v. Peters, 212 Ill. 282, 72 N. E. 369, it was said:

‘A party, only, who has a legal interest in the subject-matter of a suit can sue out a writ of error to reverse a decree entered therein.’

In the present case the subject-matter of the litigation was the marital relations existing between defendant in error and his wife, Charlotte, in which subject-matter plaintiff in error had no interest. The only direct result of a decree entered in favor of defendant in error in the cause would be a severance of those relations. Whether or not defendant in error and his wife remain husband and wife, or whether they shall be divorced, is a matter in which plaintiff in error can have no direct interest or concern. It is true that he may be injured in his reputation by the evidence in the case or by the finding of the court upon which the decree is based, but such injury is not the direct result of the decree itself.

[3][4][5][6][7] It is contended by plaintiff in error that he has the right to prosecute this writ of error for the reason that he is named as corespondent in the divorce proceedings. While in England and in some of the states in this country a corespondent is given such right by statute, such is not the case in this state. A writ of error was a writ of right at common law, and that right having been extended to chancery causes by our statute without restrictions, it is to be regarded the same as at common law and should be given the same scope as at common law. Anderson v. Steger, 173 Ill. 112, 50 N. E. 665. Prior to 1858, from a very remote period in England, the ecclesiastical tribunals had exclusive jurisdiction over divorces, except that divorces a vinculo matrimonii were occasionally granted by special acts of Parliament, and under the practice in...