Smith v. Herdlicka

• Decision Date: 23 December 1926
• Docket Number: No. 17090.,17090.
• Citation: 154 N.E. 414,323 Ill. 585
• Parties: SMITH v. HERDLICKA et al.
• Court: Illinois Supreme Court

323 Ill. 585

154 N.E. 414

SMITH

v.HERDLICKA et al.

No. 17090.

Supreme Court of Illinois.

Dec. 23, 1926.

Consolidated actions by Emma W. Smith against Violet Herdlicka and others. From a judgment dismissing complainant's petitions, she appeals.

Affirmed.Appeal from Circuit Court, Cook County; Hugo M. Friend, judge.

Robert R. Baldwin, of Chicago, for appellant.

Sherman C. Spitzer, George Gillette, Robert Humphrey, J. Scott Matthews, John B. Skinner, and Charles A. Churan, all of Chicago, for appellees.

DE YOUNG, J.

Emma W. Mackenzie on December 15, 1887, filed her bill for divorce in the city court of Aurora against Oscar C. Mackenzie, her husband, charging him with adultery and extreme and repeated cruelty. She alleged in the bill, among other things, that she resided in the city of Aurora, in Kane county, and for more than a year then elapsed had been an actual resident of the state. The defendant accepted service of process, entered his appearance, and consented to an immediate hearing. The court heard the testimony of witnesses, including the complainant, and by its decree, rendered on December 15, 1887, found that the complainant was an actual resident of the city of Aurora at the time she filed her bill; that she had resided in the state for more than a year; that the court had jurisdiction of the subject-matter and of the parties; and that the material allegations of the bill were true. A divorce was granted the complainant, and the decree provided that every demand, claim for alimony, and right of dower accruing to either of the parties by reason of their marriage should cease and be determined forever. A certified copy of the decree was filed for record in the recorder's office of Cook county on May 10, 1890.

By two deeds, dated March 5 and recorded April 8, 1889, Oscar C. Mackenzie acquired the title in fee simple to blocks 14 and 15, each consisting of 50 lots, in Taylor's subdivision of blocks 11, 12, 14, and 15 of Goodwin, Balestier & Phillips' subdivision of the west half of the southwest quarter of section 26, township 39 north, range 13 east of the third principal meridian, in Cook county. Each of these blocks at the time was subject to the lien of a trust deed from Edwin S. Stowe to Chalkley J. Hambleton, as trustee, dated September 27 and recorded December 21, 1888, and made to secure the payment of the grantor's four notes, aggregating $4,000, given for part of the purchase price. Mackenzie conveyed block 14 to Edgar A. Congdon by warranty deed dated April 9, and recorded June 7, 1889. By a warranty deed dated March 7 and recorded April 8, 1889, Mackenzie conveyed block 15 to Charles A. Vandever, James E. Kennedy, and Frederick Burgess. In both of these deeds Mackenzie described himself as unmarried and each conveyance was made subject to the existing incumbrance. Congdon and wife by warranty deed dated November 27, 1889, and recorded January 3, 1890, conveyed all the lots in block 14 to Edward T. Noonan, who also acquired the title to the lots in block 15 from Vandever, Kennedy, and Burgess by warranty deed dated January 1, and recorded February 1, 1892.

Lots 1 to 7, 16, and 21 to 30, inclusive, in block 14, and lots 1 to 5 and 36 to 44, inclusive, in block 15, were subsequently released from the liens of the respective trust deeds to Chalkey J. Hambleton, subject to which the blocks had been conveyed to Mackenzie. On September 28, 1898, two suits were filed in the superior court of Cook county to foreclose these trust deeds to the extent of the lots still incumbered by them. Emma W. Mackenzie was not made a party to either of these suits. Foreclosure decrees against, and master's sales of, the unreleased lots followed, and by two master's deeds dated March 26, 1901, Helen M. Kearns acquired title to them. One of these deeds, conveying lots 8 to 15, 17 to 20, and 31 to 50, inclusive, in block 14, was recordedon April 27, 1901, and the other deed, conveying lots 6 to 35 and 45 to 50, inclusive, in block 15, was recorded on March 27, 1901.

A considerable number of persons became owners of the lots in the two blocks by direct or mesne conveyances from Edward T. Noonan or Helen M. Kearns. Some of these owners filed petitions under the Land Titles Act for the registration of the title to their respective lots, and certificates of title were issued to them. None of these certificates mentioned was made subject to a claim for dower on the part of Emma W. Mackenzie, nor did she file in the registrar's office notice of any right or claim to the lots brought under the provisions of the Land Titles Act (Smith-Hurd Rev. St. 1925, c. 30, § 45 et seq.) within two years after registration.

On January 20, 1891, nearly two years after Mackenzie had conveyed the blocks in question, Emma W. Mackenzie filed her bill of complaint against him in the city court of Aurora to review and set aside the decree of divorce granted her by the same court on December 15, 1887. Mackenzie was served with a copy of the bill, but failed to file an answer, and the bill was taken as confessed by him. The proceedings in the suit resulted in a decree on September 23, 1893, which recited that the defendant had by threats and fraudulent representations induced the complainant to give a partial consent to the commencement of the suit for divorce; that she was at the time acting under duress and the compulsion of her husband; that, when the bill for divorce was filed, she was not a resident of the city of Aurora; and that the suit was collusive and fraudulent. The decree of divorce was set aside, and the complainant's status as the wife of the defendant was restored the same as though the divorce had never been granted. Subsequently, on October 3, 1898, she filed her bill for divorce in the superior court of Cook county against Mackenzie, charging desertion on his part. He answered the bill, and, upon a hearing, a decree of divorce was rendered, the complainantwas allowed to resume her maiden name of Emma W. Smith, and she was awarded solicitor's fees and $600 in satisfaction of all alimony and maintenance.

Mackenzie died testate on August 10, 1921, a resident of the city of Albany, N. Y. His will was admitted to record in the Surrogate's Court of Albany county, in that state. He had married again, and by his will made provision for his widow. His former wife, Emma W. Smith, once Emma W. Mackenzie, was not mentioned in the will. After Mackenzie's death, Emma W. Smith filed four petitions in the circuit court of Cook county for the assignment of dower in blocks 14 and 15. In one of these petitions, entitled Emma W. Smith v. Charles W. Lukes et al., filed on April 6, 1923, the lots in block 14, which had not been brought under the Land Titles Act, were involved. The second petition, entitled Emma W. Smith v. Thomas Remes et al., was filed on April 18, 1923, and included only the lots in block 14, the title to which had been registered. The third petition, entitled Emma W. Smith v. Violet Herdlicka et al., was filed on May 7, 1923, and concerned the lots in block 15, the title to which had not been registered. The fourth petition, entitled Emma W. Smith v. Frank Zdenek et al., was filed on May 7, 1023, and had reference to the lots in block 15, which were subject to the provisions of the Land Titles Act. The petitions were amended, and answers and replications were filed. By an order entered on April 2, 1925, the causes were consolidated under the title of Emma W. Smith v. Violet Herdlicka et al. The conveyances and other transfers of the several lots and of interest therein, from the time Mackenzie acquired title down to the time of the hearing, and other facts of the case, were set forth in a stipulation of 109 sections. Other evidence also was heard. The court found that Emma W. Smith, the petitioner, was not entitled to dower in the real estate described in her petitions, and by its decree, rendered on June 8, 1925, dismissed them for want of equity at her costs. From that decree she prosecutes this appeal.

Appellant makes several contentions for the reversal of the circuit court's decree. They are, in substance, that the city court of Aurora was without jurisdiction to hear and determine the divorce suit, that its decree of divorce was void, and that no rights could be acquired or divested by it.

[1][2][3] Jurisdiction of the subject-matter is the power to hear and determine causes of the general class to which the proceeding in question belongs, and such jurisdiction is always conferred by law. People v. Ford, 289 Ill. 550, 124 N. E. 549;Oakman v. Small, 282 Ill. 360, 118 N. E. 775;O'Brien v. People, 216 Ill. 354, 75 N. E. 108,108 Am. St. Rep. 219,3 Ann. Cas. 966;Sumner v. Village of Milford, 214 Ill. 388, 73 N. E. 742;People v. Talmadge, 194 Ill. 67, 61 N. E. 1049. By section 4 of the Divorce Act, approved March 10 and in force July 1, 1874 (Smith-Hurd Rev. St. 1925, p. 984, c. 40, § 5), the circuit courts of the respective counties and the superior court of Cook county have jurisdiction in all cases of divorce and alimony allowed by the act. Section 2 of the same act (Smith-Hurd Rev. St. 1925, c. 40, § 3) provides that no person shall be entitled to a divorce pursuant to the act who has not resided in the state one whole year next before filing his or her bill or petition, unless the offense or injury complained of was committed within this state or whilst one or both of the parties resided in this state; and the fifth section (Smith-Hurd Rev. St. 1925, c....