Whittaker v. Whittaker

• Decision Date: 19 June 1894
• Citation: 37 N.E. 1017,151 Ill. 266
• Parties: WHITTAKER v. WHITTAKER.
• Court: Illinois Supreme Court

151 Ill. 266

37 N.E. 1017

WHITTAKER

v.WHITTAKER.¹

Supreme Court of Illinois.

June 19, 1894.

Appeal from appellate court, first district.

Bill for divorce by Maggie T. Whittaker against David H. Whittaker. Defendant obtained a decree, which was reversed by the appellate court. Defendant appeals. Affirmed.

Cratty Bros. and Jarvis & Cleveland, for appellant.

Defrees, Brace & Ritter, for appellee.

BAILEY, J.

On October 26, 1887, Maggie T. Whittaker filed her bill in chancery in the superior court of Cook county against David H. Whittaker, praying for a divorce; the grounds for relief set up in her bill being habitual drunkenness and desertion. The defendant being a resident of New York, service on him was made by publication, and, he failing to appear, the bill was taken pro confesso against him, and on an ex parte hearing the court found that both the charges made by the bill were sustained by the evidence, and rendered a decree divorcing the parties, giving the complainant the custody of her infant son, and restoring to her her mainden name. On December 17, 1890, which was only seven days before the expiration of three years from the entry of decree, the defendant appeared, and filed his petition, under the provisions of section 19, c. 22, of the Revised Statutes, praying to be heard touching the matter of the decree, and that the decree be set aside, and the bill dismissed. Leave being given, the defendant filed an answer, denying the charges of habitual drunkenness and desertion; and also denying that the complainant, at the time of filing her bill, was a resident of the state, and alleging that she was then a resident of Middleburgh, in the state of New York, and had resided there for a number of years, and that she never resided in the state of Illinois before or since the filing of her bill. On June 5, 1893, the superior court, after hearing further evidence, in open court, offered by the respective parties, entered a decree vacating the original decree, and dismissing the bill for want of equity. On appeal to the appellate court that decree was reversed, the original decree confirmed, and the defendant's petition dismissed. The present appeal is by the defendant from the judgment of the appellate court.

We have carefully considered all the evidence in the case, and are disposed to concur with the appellate court in its decision. The evidence adduced upon the first hearing bearing upon the charges of habitual drunkenness and desertion was, in our opinion, amply sufficient to sustain those charges. The only evidence given on the second hearing having a tendency to contradict the case thus made was that of the defendant himself, and he, when all his testimony is considered, practically admits the desertion; and, so far as the other charge is concerned, he admits the habitual use of intoxicating liquors, and that he sometimes became intoxicated, but he seeks to show that his intoxication was somewhat less frequent and less protracted than that shown by the testimony of the complainant and her witnesses. On the whole case, we think these charges are both proved. But the main attack upon the decree relates to the evidence bearing upon the question of the complainant's residence in this state at the time of filing her bill, and for a sufficient length of time prior thereto to give the court jurisdiction of a bill for divorce. It must be admitted that the evidence on this question is quite conflicting, and not in all respects as satisfactory as could be wished; but we think it may fairly be held to be sufficient to sustain the jurisdictionof the court. On the first hearing the complainant testified that she had been a resident of Chicago continuously since October 1, 1885, and that at the time she testified she was residing at 1208 Michigan avenue. On the second hearing she produced as a witness one Root, who testified that he knew of the complainant's being in Chicago for a short time prior to October 1, 1886; that from that date up to the last of September, 1887, the witness resided with his family in several places in Chicago, he having moved two or three times during that period; that the complainant came to board with him about October 1, 1886, and continued to live with him as a member of his family, with the exception of...