Trotter v. Trotter

• Decision Date: 30 June 1875
• Citation: 77 Ill. 510,1875 WL 8350
• Parties: JOHN TROTTER et al.v.MARY A. TROTTER.
• Court: Illinois Supreme Court

77 Ill. 510

1875 WL 8350 (Ill.)

JOHN TROTTER et al.

v.MARY A. TROTTER.

Supreme Court of Illinois.

June Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Wayne county; the Hon. TAZEWELL B. TANNER, Judge, presiding.

This was a bill in chancery, by Mary A. Trotter, against John Trotter, Zadoc C. Reynolds, Calvin P. Thomasson, William J. Sailor, and Edward Bonham, for a separate maintenance, and for an injunction.

The bill alleges that on July 14, 1874, while complainant and her husband were residing in the State of Kansas, the latter deserted her, and has since failed to provide for her, etc., and went away with one Mary J. Myers; that John Trotter has money in bank to the amount of $1700, and has money and notes in the hands of Thomasson to the amount of $1800. The bill prays for a discovery of the moneys, etc., in the hands of the other defendants, and that they be enjoined from paying the same to John Trotter, and for a decree for a separate maintenance.

The court below decreed that Thomasson pay the complainant $100 money admitted to be in his hands, and continued the cause.

Messrs. HANNA & ADAMS for the appellants.

Mr. JAMES MCCARTNEY, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The question presented by this record is, can a married woman, under the law now in force in this State, bring a bill for maintenance against her husband, where she seeks no other relief.

The right to alimony, under such circumstances, was not recognized at common law; but the proper remedy, where the husband deserted his wife, and refused to supply her with necessaries according to her rank and condition, was by an action at law by the person supplying such necessaries for her. Where a separate maintenance was granted the wife, it was always as incidental to some other relief, as in case of divorce, or supplicavit for security of the peace, against her husband, etc. Story's Equity Jurisprudence, Vol. 2, sec. 1422; Bishop on Marriage and Divorce, secs. 549 to 552.

In some of the States, a different rule has obtained, and alimony has been allowed on bill filed for that purpose alone. Purcell v. Purcell, 4 Hen. and Munf. 597; Galland v. Galland, 38 Cal. 265; Graves v. Graves, 36 Iowa, 310; but except in so far as this is authorized by statute, the decisions are against the current of the authorities, and the rule they recognize is an evident departure from principle. Fisch v. Fisch, 1 Blackford, 360; Peltier v. Peltier, Harrington Ch. R. 19; Rees v. Waters, 9 Watts, 90; Pomeroy v. Welsh, 8 Paige, 406; Parsons v. Parsons, 9 N. H. 309; McGee v. McGee, 10 Ga. 477; Doyle v. Doyle, 26 Mo. 545; Yule v. Yule, 2 Stock. 138.

It is said, in Bishop on Marriage and Divorce, sec. 374, that “as a general proposition, a decree for separation in favor of the wife, must be attended, if she asks it, by a decree for alimony; and upon the same principle rests the better and general doctrine already discussed, that no court can grant alimony when it is the...