Middleton v. Middleton , 18 Ill. App. 472 ( 1886 )

McAllister, J.

We are of opinion that the objections to the order appealed from, taken by appellant’s counsel, are none of them sustainable, except the last. The first is that the court erred in assuming jurisdiction over .the person of appellant at the June term, 1885, of the court against his objections.

It is true that the summons was returnable to July term, 1885, which did not begin until the 20th of that month, and the order appealed from was made July 14, 1885. But the defendant had previously come in, filed his answer and also a cross-bill, charging the complainant with adultery and praying for a divorce. Those steps having been taken by him, prior to the return term, conferred upon the court as complete jurisdiction of his person as it could ever obtain. The cause was at issue before the order. The defendant filing a cross-bill for a divorce was as efficient in calling into exercise the powers of the court over the matter of temporary alimony or solicitor’s fees for the wife, as if he had proceeded by original bill for a divorce.

The second and third objections are that, inasmuch as the wife’s bill was for separate maintenance, there was no authority in the court to allow her temporary alimony, and to that extent the order was erroneous ; and, it appearing that the parties had entered into articles of separation whereby, amongst other things, he had covenanted to pay her for house rent not to exceed fifty dollars per month and one hundred and fifty dollars per month for her support and that of their infant child, she had no standing in court upon a bill for separate maintenance.

If the case were, in reality, only a case of a bill by the wife for separate maintenance, and the articles of separation were fairly obtained and fully performed, then there would be a grave question whether the bill for separate maintenance would lie. Ross v. Ross, 69 Ill. 569. But such is not the case. Her bill is so drawn, that if it should be sustained by the evidence at the trial, she could, at her election, take a decree for a divorce. And besides, he, by his cross-bill, has become an assailant charging her with adultery and praying for a divorce from her on that ground, thus presenting an entirely different case from that assumed by counsel. Under the actual case, there can be no doubt of the correctness of the court in holding he had authority to award temporary alimony and solicit- or’s fees.

The last point is, that “ the court erred in the amount of alimony awarded and in allowing solicitor’s fees without any evidence upon which to base the same.” The court did hear evidence on behalf of the respective parties to the fullest extent, as to the wife’s needs and the defendant’s pecuniary ability, as well also that bearing upon the conduct of the parties toward each other. If, however, the meaning of the order is, that the defendant should pay complainant two hundred dollars per month in addition to the sum he bound himself to pay her, by the articles of separation, or irrespective of what he was obligated to, or did pay under the same, it would seem to be unreasonable and unjust. The order to pay temporary alimony is without qualification; so that, if the defendant should comply with it, or it should he enforced against him, the complainant might nevertheless have her action at law upon the articles of separation, and payments in compliance with said order, would constitute no defense. We can conceive of no reason why the defendant should be placed in any such predicament. His wife, so far as appears, voluntarily and freely entered into the articles of separation, and in her bill in no way alludes to them or seeks to challenge their validity. That contract should, therefore, be regarded as valid andbinding upon both of them. We perceive no objection to the allowance of solicitor’s fees; but as respects the temporary alimony, the order should have made the payment conditioned upon defendant’s failure to pay under the articles of separation, and provided for the application of so much as was paid under the order, upon said articles.

The order will be reversed and the case remanded for further proceedings.

Order reversed.