Thomas v. Thomas

• Citation: 95 N.E. 345,250 Ill. 354
• Parties: THOMAS v. THOMAS.
• Decision Date: 19 June 1911
• Court: Supreme Court of Illinois

250 Ill. 354

95 N.E. 345

THOMAS

v.THOMAS.

Supreme Court of Illinois.

April 19, 1911.

Rehearing Denied June 19, 1911.

Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; Farlin Q. Ball, Judge.

Suit by Sallie M. Thomas against M. S. Thomas. From a judgment of the Appellate Court of the First District (155 Ill. App. 619) affirming a decree for defendant, plaintiff brings error. Reversed and remanded, with directions.Follansbee, McConnell & Follansbee and Clyde E. Shorey, for plaintiff in error.

C. H. Poppenhusen and Joseph L. McNab (S. S. Gregory, of counsel), for defendant in error.

CARTWRIGHT, J.

On July 17, 1908, plaintiff in error, Sallie M . Thomas, filed her bill for divorce in the superior court of Cook county against defendant in error, Morris St. P. Thomas, on the ground of desertion. An answer was filed on August 21, 1908, denying the charge of desertion, but no mention was made in the bill or answer of the existence of any children of the marriage. On October 29, 1908, the defendant filed his cross-bill, reciting evidence tending to show that he had not deserted his wife, but that she had deserted him, which was followed by a statement that she had deserted him and averments that two boys were born of the marriage, Benjamin M. Thomas, then 13 years old, and Carr M. Thomas, 10 years old, and that Benjamin was living with Mr. Thomas, and the younger boy, Carr, was with his mother. The cross-bill did not seek a divorce, but prayed for the care, custody, education, and control of the two children, and that Mrs. Thomas be enjoined from interfering therewith, and for such other and further relief as equity might require. Mrs. Thomas answered the allegation of the cross-bill that she had deserted her husband by denying it and demurred to the remainder, which set forth the birth of the children and matters relating to them and their custody. The court overruled the demurrer, and, Mrs. Thomas electing to stand by it, the cross-bill was ordered to be taken as confessed. When the cause was reached for hearing on the original bill and answer thereto and the cross-bill taken as confessed, Mrs. Thomas moved the court to dismiss her bill without prejudice for want of prosecution, but Mr. Thomas objected, and the motion was denied. Mrs. Thomas offered no evidence in support of her bill, and the cause was heard upon the cross-bill taken as confessed, but her solicitor appeared and contested the right to a decree on the cross-bill. The solicitor for Mr. Thomas informed the court that a divorce was not wanted, and the relief sought by the cross-bill was the custody of the children. The court entered an order finding that Mr. Thomas was a fit person to have the custody, control, and education of the children, and giving him the same, and enjoining Mrs. Thomas from interfering therewith, and ordering her to bring or send the boy Carr into the state and deliver him to her husband within 30 days. She did not comply with that order, and a final decree was entered dismissing her original bill for divorce, granting the prayer of the cross-bill, and adjudging the costs of the suit against Mrs. Thomas. She prayed an appeal to the Appellate Court for the First District, which was allowed and perfected. The Appellate Court affirmed the decree (155 Ill. App. 619), and we granted a writ of certiorari, in pursuance of which the record is now under review.

[1] The original bill prayed for a divorce on the ground of desertion. The cross-bill stated in detail that Mrs. Thomas had gone on a visit to Wisconsin and had not returned to the family home, but set up a separate establishment a few blocks distant and had afterward gone to Sioux Falls, S. D., all of which was intended to show that the separation was her act, but the cross-bill did not ask for a divorce. Its prayer and its purpose were merely to obtain the care, custody, control and education of the two boys, and so much of the cross-bill as alleged facts concerning them and asked for their custody was demurred to on the ground that such matters were not germane to the original bill. Because the original bill stated nothing about the existence of any children of the marriage, it was insisted, by demurrer, that matters concerning their custody could not be made the subject of a cross-bill. The facts set up in the cross-bill were germane to the subject of the original bill in the sense that they related to the same matter. The custody of the children was necessarily comprehended within the scope of the original bill although nothing was said about them. The filing of the original bill for divorce brought within the jurisdiction of the court the minor children of the parties by virtue of the statute, which authorizes the court, on application, to make such order concerning the custody and care of children during the pendency of the suit as may be deemed expedient and for the benefit of the children, and if a divorce shall be decreed the court may make such order touching 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. The cross-bill was not bad on account of the reason alleged in the demurrer, and when the demurrer was overruled Mrs. Thomas was still prosecuting her suit for divorce. The court did not err in overruling the demurrer, but the situation was afterward changed by the motion of Mrs. Thomas to dismiss her bill and her refusal to prosecute it further, and if the court could not grant the relief sought by the cross-bill regardless of the prosecution of the original bill, the decree must be reversed.

[2][3][4][5][6] The statute provides that after a cross-bill has been filed the complainant shall not be permitted to dismiss his bill without the consent of the defendant, and when Mrs. Thomas attempted to dismiss her bill the court denied her motion. A cross-bill may be filed purely as a matter of defense based upon facts arising after the cause is at issue. In such a case a defendant cannot avail himself of the defense by plea or answer, but must make it the subject of a cross-bill for the same reason that a complainant can only bring into the suit matters occurring after the filing of his bill by a supplemental bill. Jenkins v. International Bank, 111 Ill. 462. The cross-bill in this case was not filed purely as a matter of defense to the bill for divorce based upon facts arising after the filing of the original bill, and if it had been it would not have justified the court in refusing to allow Mrs. Thomas to dismiss her bill. The statute only applies to a cross-bill asking for affirmative relief, since it would be absurd to say that one who is merely defending can insist that the complainant shall remain in court in order that he may make a defense. The court could not compel Mrs. Thomas to prosecute her action for divorce against her will merely in order that Mr. Thomas should have an opportunity to prevent her obtaining it. The cross-bill was for the purpose of obtaining the custody of the children, and a defendant will not be permitted to file a cross-bill for an object which is equally available by an answer. Prichard v. Littlejohn, 128 Ill. 123, 21 N. E. 10. Any question relating to the custody of the children could have been raised by Mr. Thomas by his answer, and at any time after the original bill was filed such questions could have been brought before the court by an application for such custody, and upon granting a divorce the court could have awarded the custody to either party. Mr. Thomas could have fully set forth in his answer everything that was required for the protection of his rights as father of the children, and so far as the powers of the court under the divorce statute are concerned, the cross-bill was useless. If a defendant should file a cross-bill when he seeks no discovery and no affirmative relief that he cannot obtain by answer to the original bill, his cross-bill will be dismissed either on answer or motion or demurrer. Edgerton v. Young, 43 Ill. 464;Morgan v. Smith, 11 Ill. 194;Wing v. Goodman, 75 Ill. 159;Akin v. Cassiday, 105 Ill. 22;Newberry v. Blatchford, 106 Ill. 584;Howe v. South Park Com'rs, 119 Ill. 101, 7 N. E. 333. If the court had no other jurisdiction to award the custody of the children in controversy between the parents than that conferred by the divorce statute, the cross-bill interposed no obstacle to the dismissal of the original bill because Mrs. Thomas declined to prosecute her action for divorce and the cross-bill did not ask for a divorce and none was granted.

[7] In England matrimonial causes were never under the jurisdiction of courts of equity, and in this country the jurisdiction is conferred by statute, which prescribes and limits the powers of the court. So far as the children are concerned, a court can, by virtue of the statute, only make orders concerning their custody during the pendency of the suit, or upon a final hearing where the divorce is decreed. Some courts have held that the custody of children can be granted to one of the parties to a divorce suit where a divorce is denied, or not granted, which is the same thing, but the decisions rest either upon a statute conferring such power or upon supposed general equity powers of the court. In Alabama there is a statute giving courts of chancery power, in all cases of separation between husband and wife where neither party shall obtain a divorce, to give the custody and education of the children either to the father or mother, as may seem right and proper, and it was held that such an order could be made where there was an ineffectual attempt to procure a divorce. Cornelius v. Cornelius, 31 Ala. 479. We have no such statute, but our divorce statute is to the contrary, and in this case there was not even an attempt to procure a divorce. In Nelson on Divorce and Separation (volume 2, p. 979) the...