Manning v. Spurck

• Decision Date: 25 October 1902
• Citation: 65 N.E. 342,199 Ill. 447
• Parties: MANNING et al. v. SPURCK et al.
• Court: Illinois Supreme Court

199 Ill. 447

65 N.E. 342

MANNING et al.

v.SPURCK et al. ^*

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from circuit court, Peoria county; L. D. Puterbaugh, Judge.

Suit for partition by Agnes R. Manning and others against Harriet Spurck and others. The petition of Mary A. Selby for the assignment of dower and homestead in the real estate sought to be partitioned was consolidated with the partition suit, and the petition for dower was ordered to stand as a cross-bill in the partition suit. From a decree in favor of Mary A. Selby, the complainants appeal. Affirmed.Winslow Evans (Jack & Tichenor, of counsel), for appellants.

Stevens, Horton & Abbott, for appellee Mary A. Selby.

CARTWRIGHT, J.

Mary A. Selby, one of the appellees, filed in the circuit court of Peoria county her petition for the assignment of dower and homestead in the real estate of which James Selby died seised; and appellants filed their bill as heirs at law of said James Selby, deceased, for partition of the same real estate. The cases were consolidated, and it was ordered that the petition for dower should stand as a cross-bill in the partition suit. The answers to the petition denied that petitioner was the lawful wife of James Selby at the time of his death, or that she was his widow. Replications having been filed, the issue was referred to the master in chancery to take the evidence and report his conclusions. He took and reported the evidence, with his conclusion that petitioner was the lawful wife of James Selby at the time of his death, and that she was his widow, and entitled to homestead and dower in his real estate. Exceptions to the report were overruled, and the report was approved. A decree was entered accordingly, and the appellants took this appeal.

The history of the marital relations of both parties is as follows: The petitioner, Mary A. Selby, had been the wife of George C. Smith, and had two children by him. She obtained a divorce from him in the court of common pleas of Elkhart county, Ind., on January 10, 1867, and afterward resided in the city of Quincy, in this state. James Selby was married three times. There were two children of the first marriage, and, his wife having died, he was married in 1853 to Sarah Jane Bodenheimer, and there were four children of that marriage. They separated and lived apart from each other. He filed his petition for divorce from her on May 5, 1867, in the court of common pleas of Allen county, Ind. The petition was signed by an attorney, and accompanied by an affidavit of nonresidence made by the same attorney. Publication to the defendant, Sarah Jane Selby, was made, and the cause was heard at the June term, 1867, when the following entry was made by the judge on the court docket: ‘Thirteenth day, publication proved, default taken, case submitted to court, and judgment for divorce.’ No judgment or decree was entered of record at that time in the case. James Selby and his wife Sarah Jane were both residents of and domiciled in Peoria, in this state, and neither of them had any residence in Indiana. On January 30, 1868, Sarah Jane Selby filed her bill against James Selby for separate maintenance in the circuit court of Peoria county, where both parties resided, alleging her marriage to him; that there were four children, the offspring of said marriage; and that the defendant had deserted her and her children without any just cause or provocation. At the June term, 1868, of said circuit court, a decree was entered reciting that the complainant, Sarah Jane Selby, appeared; that the defendant, James Selby, entered his appearance by his solicitor, not confessing any of the matters alleged in the bill against him, except that he was married to the complainant at the time and place alleged, and that the said children were the legitimate offspring of said marriage; and by agreement of the parties the custody of the children was awarded to Sarah Jane Selby, and she was given certain real estate and $1,000 for her separate maintenance. The defendant was ordered to pay $200 a year for the support of each of the children until they arrived, respectively, at the age of 18 years. The decree was by consent and agreement, and provided that it should be lawful for the parties to live separate and apart, and that the performance of the decree should discharge James Selby from all claims, demands, and liabilities incident to and growing out of the marital relation of the parties, and should be a bar and quittance to all present and future claims of the complainant. The court of common pleas of Allen county, Ind., having been abolished, and its records, files, and jurisdiction transferred to the circuit court of said county, James Selby filed his petition in said circuit court at the February term, 1874, setting forth the proceedings for divorce in 1867, the rendition of judgment, and the neglect of the clerk to enter such judgment, and he moved the court to order and direct the clerk to enter such judgment nunc pro tunc of the date when it was actually rendered. The court heard the motion and granted it, and the judgment or decree was entered nunc pro tunc as of the time when the proceedings were had, in 1867. On July 8, 1875, James Selby and the petitioner, then Mary A. Smith, were formally married at Quincy, in this state, where she resided, by Rev. Peter Wallace, a minister of the Methodist Episcopal Church. Immediately after their marriage they came to Peoria, and lived there publicly and prominently as husband and wife for about 25 years, until his death, on March 9, 1900. He was a prominent business man, engaged in manufacturing, in said city of Peoria, during all that time. At the time of this marriage Sarah Jane Selby was living in Peoria, and continued to live there until her death, which occurred December 9, 1898. The validity of the marriage between James Selby and the petitioner was never questioned by anybody until this suit, and during its existence Sarah Jane Selby never claimed to be his wife, nor raised any question as to the legality of his marriage to petitioner. The children, who grew to adult age during that period, never questioned the legality of the marriage, and the evidence shows that it was understood...