Petrie v. People of State

• Decision Date: 30 April 1866
• Citation: 40 Ill. 334,1866 WL 4485
• Parties: HENRY PETRIEv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

40 Ill. 334

1866 WL 4485 (Ill.)

HENRY PETRIE

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

April Term, 1866.

APPEAL from the Superior Court of Chicago.

In February, 1865, Martha A. Petrie exhibited her bill in chancery in the court below, against Henry Petrie, her husband, for a divorce. The defendant demurred to the bill. The complainant also filed her petition for an allowance of temporary alimony for support and expenses of the suit.

The motion for alimony and the demurrer to the bill were heard together on the 21st of March, 1865.

The demurrer was overruled, and the defendant ordered to pay fifty dollars temporary alimony by the following Friday, and fifty dollars by the first day of the next term of court.

On the 7th of April following, the defendant was brought into court under a writ of attachment stated therein to have been issued “for a contempt of court in not obeying a certain order of court entered of record in a certain cause now pending in said court, on the chancery side thereof, wherein Martha A. Petrie is complainant, and said Henry Petrie is defendant; he having been duly served with a certified copy of said order,” dated, March 25, 1865. The return of the sheriff shows defendant was arrested thereon, April 4, 1865.

A motion was then made to quash the attachment and discharge the defendant upon the grounds:

1st. Because there was no notice of motion, copy of affidavits or rule to show cause, made, served upon, or given to said defendant or his solicitors previous to issuing the same, and no notice was given of any application to the court for any order in the case, and defendant had no opportunity to controvert the affidavits, if any, filed against him.

2d. The court had no authority or jurisdiction to make said order, or to direct the imprisonment of the defendant, or the payment of alimony, until after a final decree of divorce in the case, and said order of 21st March, and all proceedings thereunder were absolutely void and so remain.

This motion was made upon the bill, demurrer, orders of court, petition, and affidavits filed. The court overruled said objections and denied the motion. Defendant excepted--“and thereupon, on motion of complainant, without the filing of interrogatories to defendant, or other proceedings being had in the case, the court ordered defendant to be committed to close confinement in the common jail of Cook county; and a writ of attachment was allowed by, and issued out of said court against defendant, who excepted thereto.”

The mandatory clause is as follows, viz.:

“Now, therefore, we command you that you take the body of the said Henry Petrie and him safely keep in your custody in the jail of said county, until he pay the said fifty dollars and the costs and expenses as aforesaid with your fees hereon or until our said court shall make an order to the contrary.”

From this order the defendant appealed to this court, and now insists the rulings of the court below were erroneous: First, because he did not have an opportunity to meet the affidavits filed by the complainant in support of her motion for temporary alimony; second, because the courts of chancery in this State have no power to grant temporary alimony pendente lite, and, third, because the attachment for contempt could not properly issue until notice thereof had been previously given, and an opportunity for the defendant to purge himself of the alleged contempt.

Messrs. HAINES & STORY, for the appellant, upon the principal question, contended that the courts of chancery in this State have no power to grant an application for temporary alimony pendente lite, citing Wilson v. Wilson, 2 Dev. & Batt. (N. Car.) 377; Sheldon v. Pendleton, 18 Conn. 417; Harrington v. Harrington, 10 Vt. 505; Hazen v. Hazen, 19 Id. 603.

Counsel urged that the courts in this State have jurisdiction in cases of divorce, only by statute. Rev. Stat. ch. “Divorces,” § 1.

Jurisdiction is given specially to the Circuit Court, in chancery, in all cases of divorces and alimony allowed by the chapter of divorces under the practice and proceedings only of such courts. Rev. Stat. “Divorces,” ch. 33 § 2.

The chapter of divorces allows alimony only when the divorce is decreed (§ 6).

But when a woman sues for a divorce the statute provides that if she is poor and unable to pay the expenses, she shall be allowed to prosecute without cost, and no fees shall be charged by the officers of the court (§ 7).

Attorneys are officers of the court, and may be compelled to act to a reasonable extent without fees, as well as any other officer of court.

The intention of the statute is clear that the party shall have no other remedy than that given by the statute, which seems to be complete for the purposes of justice.

The rules of the Ecclesiastical Courts of England do not apply in the courts of this State in proceedings for divorce. Those courts are not known to our law.

We have adopted the common law by statute, and have taken only that which is applicable to the habits and condition of our society, and in harmony with the genius, spirit, and objects of our institutions. Boyd v. Sweet, 3 Scam. 120; Stuart v. People, Id. 396.

Messrs. WARD & STANFORD, for the appellee.

The power to award the wife temporary alimony is an inherent power of the courts of chancery in this State. They administer the law according to the rules and practice of the common law, except in so far as those rules have been abrogated or modified by statute.

We have adopted by express statute the common law of England, so far as the same is of a general nature, and applicable to our institutions. See ch. 62, Rev. Stat. § 1, title “Laws.”

Alimony pendente lite was an established right in England when we adopted such portions of the common law as are included in the provisions of such statute. See Smith v. Smith, 2 Phillimore, 152; Stone v. Stone, 3 Curteis, 341; Bird v. Bird, 1 Lee, 572; 1 Chitty's Gen. Pr. 60, 61; Id. 462, 463; McGee v. McGee, 10 Ga. 477.

True, it grew up under and was enforced by the Ecclesiastical Courts, but the power was expressly recognized by the law courts also. See Wilson v. Smyth, 20 Eng. Com. Law, 486; Hunt v. DeBlaquere, 15 Id. 550.

In these cases the question arose upon suit brought against husband for necessaries furnished the wife pending suit for divorce. Defense, that the Consistory Court had awarded temporary alimony, which had been paid by the husband, held a good defense.

The ecclesiastical law of England is part of the common law, and is there so regarded. See Bishop, § 1, also § 9 and note 4.

In McGee v. McGee, 10 Ga., before cited, Judge NISBET delivering the opinion of the court, says: Alimony pendente lite, is “a common law right. It was an established right in England when we adopted the common law. It is no less a common law right because it grew up under the usages of the Ecclesiastical Court. It is suited to our condition, and is in harmony with our institutions. Upon the subject of temporary alimony, however, our statutes are silent.” Under this state of facts that court held, “that with the power to grant divorces passed the power to enforce the common law which gives to the wife temporary alimony.”

In Melizet v. Melizet, 1 Pars. 78, the court says: “On general principles independent of the statute, I am convinced that the husband, plaintiff or defendant, is obliged to pay the expenses incurred by his wife in prosecuting or defending a divorce. It is an incidental authority to the power given this court to decree a divorce.” See also Graves v. Cole, 7 Harris (Pa.) 171.

It is not claimed that the American decisions are uniform upon this question, but it is claimed that the current of authority is decidedly in favor of the allowance. See Bishop on Marriage and Divorce, 3d ed. § 576, also § 398, 2d vol. Bishop on Marriage and Divorce, 4th ed., and the numerous cases cited in the notes thereto. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

It is insisted that the court below erred in allowing alimony to enable complainant to employ counsel and otherwise prepare for the prosecution of her suit. The power of the court to make such an order is questioned, upon the ground that the statute regulating proceedings in divorce contains no express authority for the purpose, the statute only, in terms, authorizing the court to allow permanent alimony by the final decree. The only provision on the subject of alimony is found in the sixth and eighth sections of our statute, the former of which declares, that “When a divorce shall be decreed, it shall and may be lawful for the court to make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just; and, in case the wife be complainant, to order the defendant to give reasonable security for such alimony and maintenance, or may enforce the payment of such alimony and maintenance, in any other manner consistent with the rules and practice of the court; and the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, as shall appear reasonable and proper.”

The eighth section declares, that if upon the hearing the court shall be satisfied of the expediency of decreeing a dissolution of the bands of matrimony it shall have power to do so, “and to make such order with regard to the costs as it may deem right, and also, to make such order with regard to the children (if any) and the right of alimony as it may think proper.”

There seems, in the American courts, to be some conflict of authority on the question whether the courts to which jurisdiction is given over cases of divorce, in the absence of statutory enactment, or where, as with us, the statute only provides for the allowance of permanent alimony on granting the divorce, have...