Carlin v. Carlin , 1895 Ill. App. LEXIS 1057 ( 1896 )

Mb. Justice Boggs

delivebed the opinion of the Coubt.

Courts in equity have exclusive jurisdiction of suits for divorce.

Our statute of limitations does not in terms apply to such proceedings, and according to the familiar doctrine the court in such cases will determine from inherent equitable principles whether the complainant has been guilty of such laches as ought to debar relief. 13 Amer. & Eng. Ency. of law 675, 676.

The allegations of the bill reasonably excuse complainant’s delay; the relative position of the parties has not been altered to the prejudice of the defendant by the lapse of time, and the delay in instituting the action has not been so great within itself as to warrant a court of equity in refusing to entertain the bill and hear the cause.

The principal contention of the appellee is, a bill for divorce upon the ground the defendant has been guilty of habitual drunkenness for a period of two years, must be exhibited in the court immediately upon the expiration of the two years. We find no warrant for this view in the language of the statute or in the reason or justice of the matter, and do not assent to its correctness.

It is not necessary the complainant should institute his suit instantly upon the expiration of the period of two years or the day after, the week after, month or year or anj^ other specified time after the expiration of such period.

It is sufficient if the allegations of the bill show the defendant has been guilty of habitual drunkenness from the use of intoxicating liquors for two successive years prior to the institution of the suit and negative all imputations of condonation or laehes, if an inference of either arises from the delay in invoking the action of the court or otherwise from the circumstances of the particular case.

Tested by this rule the bill in the case at bar is in our judgment good and sufficient to entitle the complainant to a standing in court.

It is stated in the bill the defendant was also addicted to the use of opium and other narcotics, but the charge is distinctly made the drunkenness complained of resulted from the use of intoxicating liquors.

Alimony pendente Vite ought not to be decreed unless it appears the wife is without means to enable her to properly present her defense or that an allowance is necessary for her support pending the proceeding.

If she has means adequate for such purposes the court should not, in advance of a hearing upon the merits of the case, require the complainant to contribute money to her or to her counsel.

In the case at bar the wife has an income of $5,000 per year, and we perceive no reason for requiring the complainant to pay to her or her counsel any sum in advance of a determination of the right of the parties upon final hearing.

The decree sustaining the demurrer to the bill and dismissing the cause and making an allowance of alimony pendente lite is reversed and the cause remanded with direction to the court to overrule the demurrer and require the defendant to plead to or answer the bill.