Way v. Way
| Decision Date | 30 September 1872 |
| Parties | ANNIE D. WAYv.ALONZO WAY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Messrs. HOWE & RUSSELL, for the appellant.
Mr. JOSEPH PFIRSHING and Mr. V. T. KENNY, for the appellee.
The solution of one question against the complainant disposes effectually of this case, and, therefore, we shall not enter upon a discussion of the numerous errors assigned.
The bill commences as follows: “Your orator, of the city of Chicago, Cook county, Illinois,” and subsequently alleges that the complainant is an actual resident of this State. We shall not question these allegations to be a substantial compliance with the requirement of the statute, that proceedings for a divorce shall be had in the county where the complainant resides.
The bill further charges that the defendant committed adultery with one Richmond, in the city of Chicago, county of Cook, and State of Illinois.
The answer expressly denies the charge of adultery, and that the complainant resided in this State, either at the time of filing the bill or at the time of the alleged offense; and avers that the defendant was not a resident of this State at the time the offense of adultery is alleged to have been committed.
Thus it will be seen that a direct issue was presented as to the residence of complainant in this State at the time of filing the bill.
The only evidence as to the fact of residence, on the part of complainant, was his own, and we quote his language from the the record: “That he resided in Haverhill, State of Massachusetts, and had resided there for the past year; that he was carrying on the business of a merchant tailor; that he came to Chicago three or four days prior to the commencement of this suit.” He says, in another portion of his testimony, that he had resided in Iowa, and having heard of the adultery of his wife in Chicago, he shipped her goods to Haverhill and his own to Chicago, and concluded that he would not live with her longer; “that one of his objects was to get a divorce; that he intended, if a favorable opportunity occurred, to remain there and engage in business--namely, in Chicago; and that no such opportunity occurred, and in about three months after, he returned to Haverhill and went into business there.”
The proof is conclusive that, at the time of the commencement of the suit, and during its progress, both parties were actual residents of the State of Massachusetts.
The direct question is, therefore, presented: Upon the hearing, had the court jurisdiction to render the decree, and dissolve the contract of marriage?
It is contended that the objection to the jurisdiction should have been taken before the trial on the merits. This could not have been done, for the bill alleged all the facts necessary to confer jurisdiction. The question of jurisdiction, then, became one of fact, to be determined upon the hearing. It might, perhaps, have been presented by motion after the evidence was heard; but it was raised by an instruction asked and refused. When the want of jurisdiction clearly appeared during the progress of the trial, it was the right and duty of the court, under the pleadings, to have dismissed the bill.
The case of Peeples v. Peeples, 19 Ill. 269, is not in point. In that case, the want of jurisdiction was apparent on the face of the bill. It disclosed that the complainant resided in one county and filed her bill in another. The defendant filed his answer, and made no objection until after trial and verdict, and thereby waived the objection.
In this case, the court had jurisdiction, if the bill was true. Its truth was denied, and when the complainant failed to sustain his allegations by proof, the question of the jurisdiction of the court, for the first time, arose. The court was asked, in behalf of the defendant, to instruct the jury that if the complainant, at the time of filing the bill, did not have an actual residence in Cook county, he was not entitled to a verdict. This was refused, and the jury were instructed that residence in the county or State is not necessary, if the act of adultery was committed in the county in which the suit was brought. If, by a proper construction of our statute, the court had not jurisdiction, then even consent of the parties would not give it.
There was sufficient evidence to justify the inference that the defendant had been guilty of adultery in the county of Cook.
Did proof of this fact, without proof of residence in the county, confer jurisdiction? The provisions of the statute, which must control the answer to this question, are the following:
“Sec. 2. The proceeding shall be had in the county where the complainant resides, and the process may be directed to any county in the State.
Sec. 3. No person shall be entitled to a divorce, in pursuance of the provisions of this chapter, who has not resided in the State one whole year previous to filing his or her petition, unless the offense or injury complained of was committed within this State, or whilst one or both of the parties resided in this State.” Rev. Stat. 1845, 197.
Counsel for appellee contend that section 2 merely establishes a rule of practice, and not a condition precedent to jurisdiction, and that even the citizen of the State is required to institute his suit for a divorce in the county where he resides; but when the act is committed here, jurisdiction is given without any residence, and section 2 only requires that the complaining party shall file his bill in the county where he resides. If no residence is required in the given case, it is difficult to comprehend how the requirement that the bill shall be filed in the county in which the complainant resides, can be complied with, and when in fact no residence has been obtained.
No reason has been assigned why this provision is a mere rule of practice, and a compliance with it not essential to jurisdiction; and, we apprehend, none can be given. The language is comprehensive enough to embrace all suits for divorce, whether for offenses committed without or within the State. The construction contended for would fritter away one section of the statute as to non-residents, and make it operative as to residents. The legislature certainly never intended the distinction, that the resident must sue in the county of his residence, and the non-resident might sue in any county in the State.
We have analogous statutes, establishing rules of practice, a compliance with which is necessary to jurisdiction. The chancery act requires suits in equity to be commenced in the circuit court of the county in which the defendants, or the major part of them, reside. So, according to the statutes in relation to dower and partition, the bills must be filed in the counties where the lands, or the major part of them, lie. Without a conformance with these requirements, the court would not have jurisdiction.
In the ascertainment of the meaning of a statute, it is well to keep in view the...
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