Smith v. Johnson, No. 17070.

CourtSupreme Court of Illinois
Writing for the CourtSTONE
Citation321 Ill. 134,151 N.E. 550
PartiesSMITH v. JOHNSON et al.
Decision Date23 April 1926
Docket NumberNo. 17070.

321 Ill. 134
151 N.E. 550

SMITH
v.
JOHNSON et al.

No. 17070.

Supreme Court of Illinois.

April 23, 1926.


Suit by Pauline M. Smith against Bruce D. Smith. An order dismissing defendant's supplemental petition and cross-bill, naming plaintiff, now Pauline M. Johnson, and others, as defendants, was affirmed by Appellate Court (236 Ill. App. 339), and defendant appeals.

Affirmed.


[321 Ill. 135]Appeal from Second Branch Appellate Court, First District, on Error to Circuit Court, Cook County; Jesse Holdom, Judge.

Sims, Welch, Godman & Stransky, of Chicago (F. J. Stransky, of Chicago, of counsel), for appellant.

Scott, Bancroft, Martin & MacLeish and Wilson, McIlvaine, Hale & Templeton, all of Chicago (Frank H. Scott, John E. MacLeish, William B. McIlvaine, and Cranston C. Spray, all of Chicago, of counsel), for appellees.


STONE, J.

The appellee Pauline M. Smith (now Johnson) filed a bill for divorce in the circuit court of Cook county against the appellant on the ground of habitual drunkenness and desertion. The bill prayed for dissolution of the marriage, for custody of the three minor children, and for alimony. The appellant entered his appearance, and filed an answer denying the charges of the bill. On June 3, 1920, the court, on hearing, sustained the charges of the bill, and entered a decree for divorce, granting custody of the children to the complainant, and reserving the question of alimony for the further order of the court. On the next day the court entered a supplemental decree as follows:

[151 N.E. 551]

‘This day came again the said complainant by her solicitors and the said defendant by his solicitor, and, it appearing to the court that full provision has been made out of court by the defendant to the complainant for the support of herself and her said children, and all question of the payment of alimony by the [321 Ill. 136]defendant to complainant has been fully settled by and between the parties hereto, and the court being fully advised in the premises, it is therefore ordered, adjudged, and decreed that all alimony to be paid by the defendant to the complainant for the support of herself and the said children has been fully paid and satisfied, and that the said final decree entered herein on the 3d day of June, 1920, in so far as the same reserved, subject to the further order of this court, the sum or amount of alimony to be paid by the defendant to the complainant for the support of herself and the said children, be and the same hereby is fully satisfied and discharged.’

In April, 1922, the appellant filed what he characterizes as a supplemental petition and cross-bill, naming as defendants thereto his former wife, Pauline, their three children, and his three brothers and himself as trustees under a trust agreement dated June 3, 1920. The appellant's three brothers, individually and as trustees, and his wife (now Pauline M. Johnson), filed a motion to strike the supplemental petition and cross-bill from the files on the ground that the court was without jurisdiction to pass upon the matter set out therein or to grant the relief prayed, and for the further reason that the supplemental petition and cross-bill had been filed without leave of court. On this motion the petition was stricken from the files; the court expressly holding that it had no jurisdiction to consider and pass upon the socalled supplemental petition and cross-bill.

The petition sets out that by protracted negotiations with the appellant's brothers, and through connivance on their part to deprive him of dominion and control over his property, and to gain control thereof for themselves, and by the conspiracy of his brothers with his wife to defraud him out of his property, he was induced to convey his property to his brothers, Solomon A., Walter B., and Harold, and himself, as trustees, under the guise and pretense of making provision for the support and maintenance of his [321 Ill. 137]wife and their children, but, in fact, for the purpose of depriving the appellant of the control of his property. The petition avers that the trust agreement was entered into only as the result of persuasions, importunities, threats, and duress, and without any consideration whatever, and in contemplation of the divorce thereafter procured by his wife. The petition alleges that, if the trust agreement had any validity whatever, it was solely as a provision for the support and maintenance of his wife and children, and as such constituted part of the decree for divorce theretofore entered on June 3, 1920, and that it is subject to the control and modification of the court from time to time, as provided in section 18 of the Divorce Act (Smith-Hurd Rev. St. 1925, c. 40, § 19). The petition avers that the trust agreement is illegal, inequitable, unconscionable, and void; that since its execution Pauline M. Smith has married H. Lindsley Johnson, who is able to support and maintain her without assistance from the petitioner, and that by reason of such marriage the petitioner's liability to support her has ceased. It also sets out that the petitioner has married Florence Mann, and that they were residing together as husband and wife, It also averred that, through improper and improvident management of the trust estate created by the trust agreement, the income from the trust estate, which should afford support also for the petitioner, has become impaired and diminished so that there is barely enough to meet the payments to Pauline M. Johnson for her benefit and that of the children.

The trust agreement referred to in the petition provides, among other things, for the payment to Pauline M. Smith of a minimum sum of $15,000 per annum for the support and maintenance of herself and the children. The property transferred consists of real and personal property; the latter being...

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28 practice notes
  • Alibrando v. Alibrando, No. 10987.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • April 11, 1977
    ...335 (1901); and Cole v. Cole, 142 Ill. 19, 31 N.E. 109 (1892). Cf. Lott v. Lott, 213 Ga. 559, 100 S.E.2d 170 (1957) and Smith v. Johnson, 321 Ill. 134, 151 N.E. 550 The court believes that this view, considered the majority rule, is based on the more realistic premise that the judgment of a......
  • Welsh v. Welsh, No. 23875.
    • United States
    • Court of Appeal of Missouri (US)
    • April 7, 1936
    ...v. Superior Court, supra; Schneer v. Schneer, 17 Pac. (2d) 749, 128 Cal. App. 363; Keene v. Keene, 241 Ill. App. 414; Smith v. Johnson, 321 Ill. 134, 151 N.E. 550. (9) On the other hand, the inclusion in the decree of the property settlement agreement in haec verba, and the decree ordering ......
  • Seuss v. Schukat, No. 22302.
    • United States
    • Illinois Supreme Court
    • October 24, 1934
    ...creature of the statute and destroys the matrimonial relation which theretofore existed between the contracting parties. Smith v. Johnson, 321 Ill. 134, 151 N. E. 550. It is not an act of the parties, but one of the law. Although the aid of the courts must be invoked by either the husband o......
  • Farah v. Farah, No. 59651
    • United States
    • United States Appellate Court of Illinois
    • January 6, 1975
    ...and, in turn, '* * * such jurisdiction depends upon the grant of the statute, and not upon general equity powers.' Smith v. Johnson, 321 Ill. 134, 140, 151 N.E. 550, In Illinois the pertinent statute pertaining to divorce provides that, 'The circuit courts of the respective counties shall h......
  • Request a trial to view additional results
28 cases
  • Alibrando v. Alibrando, No. 10987.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • April 11, 1977
    ...335 (1901); and Cole v. Cole, 142 Ill. 19, 31 N.E. 109 (1892). Cf. Lott v. Lott, 213 Ga. 559, 100 S.E.2d 170 (1957) and Smith v. Johnson, 321 Ill. 134, 151 N.E. 550 The court believes that this view, considered the majority rule, is based on the more realistic premise that the judgment of a......
  • Welsh v. Welsh, No. 23875.
    • United States
    • Court of Appeal of Missouri (US)
    • April 7, 1936
    ...v. Superior Court, supra; Schneer v. Schneer, 17 Pac. (2d) 749, 128 Cal. App. 363; Keene v. Keene, 241 Ill. App. 414; Smith v. Johnson, 321 Ill. 134, 151 N.E. 550. (9) On the other hand, the inclusion in the decree of the property settlement agreement in haec verba, and the decree ordering ......
  • Seuss v. Schukat, No. 22302.
    • United States
    • Illinois Supreme Court
    • October 24, 1934
    ...creature of the statute and destroys the matrimonial relation which theretofore existed between the contracting parties. Smith v. Johnson, 321 Ill. 134, 151 N. E. 550. It is not an act of the parties, but one of the law. Although the aid of the courts must be invoked by either the husband o......
  • Farah v. Farah, No. 59651
    • United States
    • United States Appellate Court of Illinois
    • January 6, 1975
    ...and, in turn, '* * * such jurisdiction depends upon the grant of the statute, and not upon general equity powers.' Smith v. Johnson, 321 Ill. 134, 140, 151 N.E. 550, In Illinois the pertinent statute pertaining to divorce provides that, 'The circuit courts of the respective counties shall h......
  • Request a trial to view additional results

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