Miner v. Miner

• Court: Supreme Court of Illinois
• Citation: 1849 WL 4253,1 Peck 43,11 Ill. 43
• Parties: MARTIN B. MINERv.LAURA L. MINER.
• Decision Date: 31 December 1849

11 Ill. 43
1849 WL 4253 (Ill.)
1 Peck (IL) 43

MARTIN B. MINER
v.
LAURA L. MINER.

Supreme Court of Illinois.

December Term, 1849.

The appellee, complainant in the Jersey circuit court, at the May term, 1848, filed her bill for a divorce, on account of extreme and repeated cruelty on the part of her husband. The venue was afterwards changed to Greene county for trial, and in that court a decree for a divorce was entered, the defendant having withdrawn all defense to a divorce, but reserving to himself “the right of contesting before the court all her legal claims, to the custody, care and maintenance of his daughter, Charlotte H. Miner, the only surviving offspring of the marriage; and reserving, also, to himself, the right of contesting any claim which might be set up by complainant for alimony, as set forth in the bill.” Subsequently to the entry of the decree for a divorce, the questions as to custody of the child and the allowing of alimony were heard and decided, whereby the custody, care,

[11 Ill. 44]

control and raising of the child, was given to the complainant, and that she have and retain as for her alimony, certain articles of personal property, enumerating some of them, “and such other items of personal property as she has in her possession, that may have belonged to the defendant;” the court making “no order for the payment of alimony in money,” from which the defendant prayed an appeal to this court; but the court below, as the decree reads, in consequence of the additional expense which would have to be incurred by the plaintiff, in further litigating this cause, ordered and decreed that the defendant pay to the plaintiff $15, at the end of each month, from and after the date of the decree, until the questions involved are settled, and the child should be surrendered to the plaintiff.” From all these decisions, except the one granting a decree, the defendant has appealed to this court. The testimony adduced on the final hearing of the questions reserved, some of which was objected to, is embodied in the bill of exceptions, and the defendant insists does not authorize the decisions of the court made therein.

By agreement of the parties, entered of record, David A. Smith, esq., was substituted for judge Woodson in the hearing of this cause, the latter having been of counsel for one of the parties, and the decision of Mr. Smith was to be and was entered as of the April term, 1849, of said Greene circuit court.

It is not deemed advisable to incorporate the testimony in the statement of the case, inasmuch as it is not essential to a full understanding of the opinion.

The appellant assigned several errors:

1. That he should be entrusted with the care of the child, instead of the mother.

2. That decree for divorce ought not to have been granted, nor should respondent have been adjudged to pay the costs.

3. That alimony was improperly allowed.

4. That the decree for alimony, besides being for specific articles of property, incapable of identification, is indefinite and uncertain.

5. That the circuit court imposed terms and required conditions unauthorized by law, and arbitrary in their character and terms.

[11 Ill. 45]

6. That the allowance of fifteen dollars per month was wrong, and it was error to give the appellee the custody of the child.

7. The allowance of five dollars per month to the appellee, for her support during the pendency of this suit.

8. And the issuing of the depositions, taken for the express purpose of divorce, in the hearing on trial for the custody of the child.

D. J. BAKER, for appellant:

1. The father has the first right to the guardianship of his children, and to their custody, care, control and raising. This right is incident to and arises out of his duty to maintain them, and, consequently, to instruct them, and his right to their services. 2d Kent's Com., p. 193 and 195, note b; also 1 Hoff., Ch. R., 497; Ahrenfeldt v. Ahrenfeldt, 25 Wend. R., 64; Mercien v. People, 3d Hill's R., 399; The People v. Mercien, 2d Kent's Com., 195 and 205, and notes b and c; The King v. De Manneville, 5 East; 4 Humph. Rep., 523; 18 Wendell, 637. In The...