Thomas v. Thomas

• Decision Date: 30 September 1869
• Citation: 51 Ill. 162,1869 WL 5292
• Parties: EMMA L. THOMASv.LEWIS R. THOMAS.
• Court: Illinois Supreme Court

51 Ill. 162

1869 WL 5292 (Ill.)

EMMA L. THOMAS

v.LEWIS R. THOMAS.

Supreme Court of Illinois.

September Term, 1869.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Livingston county; the Hon. CHARLES R. STARR, Judge, presiding.

The opinion states the case.

Mr. B. C. COOK, for the plaintiff in error.

Mr. N. J. PILLSBURY, for the defendant in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a bill for a divorce, filed by defendant in error, in the Livingston Circuit Court, against plaintiff in error. The bill alleges a willful and malicious desertion for the space of seven days; frequent acts of adultery with one Albert Beckwith, and previous to such desertion she had been guilty of the infamous crime of larceny. Summons was issued on the 4th day of March, 1865, and returned on the 18th of the same month, not served. At the next November term a decree pro confesso was rendered on a previous notice by publication, and the case was referred to the master to hear and report the evidence.

The evidence reported by the master shows but four days' desertion before the bill was filed. The statute (Gross' Comp. p. 230, sec. 1) declares that the desertion shall continue without cause for two years. The statute has required that the ground must be shown to have existed for the full period of time before a court can grant a divorce for such a cause. Courts have no power to prescribe a shorter time, or require less than the statute has prescribed. The courts derive their power to act alone from the statute, and must act within its provisions and requirements. It is not a matter of discretion in the chancellor whether he will allow the divorce, but he must act upon and within the power conferred by the statute. This, then, had no semblance of a ground for rendering the decree.

An examination of the evidence preserved in the record entirely fails to establish adultery. The only evidence was that of Henry W. Thomas, who testified that she left her home frequently in the absence of her husband, who was a trader, and would be absent several days at a time, and that her reputation for chastity was bad. This is the substance of all the evidence on the charge of adultery, and wholly fails to prove it. In that, as in all other charges, it must be proved by direct or circumstantial evidence, and not on mere suspicion, or even on bad reputation. We discover no single fact proved from which the charge can be inferred. On this charge in the bill,...