The Springfield Marine v. Peck

• Decision Date: 28 March 1882
• Citation: 102 Ill. 265,1882 WL 10221
• Parties: THE SPRINGFIELD MARINE AND FIRE INSURANCE COMPANYv.MILDRED A. PECK.
• Court: Illinois Supreme Court

102 Ill. 265

1882 WL 10221 (Ill.)

THE SPRINGFIELD MARINE AND FIRE INSURANCE COMPANY

v.MILDRED A. PECK.

Supreme Court of Illinois.

Filed at Springfield Mar. 28, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding.

Messrs. STUART, EDWARDS & BROWN, for the appellant.

Mr. WILLIAM E. HUGHES, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The bill in this case was brought by Mildred A. Peck, in the circuit court of McLean county, against her husband, Philo W. Peck, for separate maintenance. The proceeding is had under a statute of the State.

The marriage of the parties, and the facts that are alleged would warrant complainant in living separate and apart from her husband, are all set forth with sufficient definiteness in the bill. It is conceded the proof offered in support of the allegations of the bill in this regard is sufficient to warrant a decree for separate maintenance. The decree in this respect is not called in question, either by any assignment of error, or by the argument of counsel. It will be noticed the bill contains an allegation defendant “had money, notes and real estate,” and on information and belief it was charged he had on deposit in the “Springfield Marine and Fire Insurance Company” the sum of $2500, but whether on general or special deposit, was not known. It was also charged defendant had declared his intention of departing from the State and going to parts unknown, where he could not be compelled to support complainant and her children. The bank in which it was represented defendant had money deposited, was named as a co-defendant with him, and a temporary injunction was asked to restrain defendant, among other things, from assigning the certificates of deposit which he held, or from collecting the same from the bank, and also restraining the bank from paying them. The prayer of the bill in that regard was allowed. Service of the injunction was made on the bank on the 10th day of January, 1881, and on the principal defendant on the 14th day of the same month. The bank answered the bill, and after disclaiming any knowledge of the relations between the parties, admitted that on the 4th day of December, 1880, defendant deposited in the bank $2500, and there were issued to him three certificates of deposit, in the usual form, for the amount deposited, payable to the order of himself, on demand, on the return of the certificates properly indorsed, and further stated the certificates were presented to the bank by Sandford H. Little, “properly indorsed” by the depositor, and were paid in due course of business. Evidence introduced on this branch of the case shows the certificates of deposit were neither assigned nor paid until after the service of the writ of injunction on both the bank and defendant, Peck. No answer was made by Peck, and as to him the bill was taken for confessed.

On the hearing the court found the material allegations of the bill to be true, and entered a decree for separate maintenance. Among other facts specifically found by the court in its decree, it was found defendant had left the State, and that he had on deposit in the defendant bank, at the date of the service of the injunction upon it, the sum of $2500, for which he held certificates of deposit in the usual form, that the indorsement of such certificates to Little was colorable, and that Little paid the identical money over to defendant shortly after he drew it out of the bank. As for separate maintenance, the court decreed complainant should have the net rents from certain real estate, and that the bank should pay to her for the same purpose $1500 of the money her husband had on deposit in the bank at the date of the service of the injunction. The bank prosecuted an appeal from the decree rendered, to the Appellate Court for the Third District, where the decree of the circuit court was affirmed, and now it brings the case to this court on its further appeal.

Whether the circuit court erred in allowing complainant an excessive amount for separate maintenance, or in allowing a sum in gross in lieu of maintenance, are questions in which it is apprehended the bank prosecuting this appeal has no interest. It is plain no one except the defendant out of whose estate payment is to be made, could complain of the decree in these respects, and he has not joined in this appeal. The circuit court, under the statute, had jurisdiction of the subject matter of the suit, and by service of process it had jurisdiction of the persons of the parties, and hence its decree is valid and binding on all persons until it is reversed on the application of some one directly interested. The decree, if erroneous in these respects, could only affect injuriously the husband, whose property is appropriated by the decree, and he is not now complaining. Had the bank retained the money deposited with it to abide the result of the litigation, it would have been immaterial to it whether it should...