Klemme v. Klemme

Garnett, J.

A bill for divorce was filed in the Circuit Court by appellee against appellant, but by amendment was converted into a bill for separate maintenance. Decree in pursuance of the prayer of the bill as amended was entered, and the defendant appeals. The relief granted in such eases is purely statutory. Trotter v. Trotter, 77 Ill. 510. A condition precédent to such a decree is that the wife shall live separate and apart from her husband. 1 Starr & C. Ill. Stats., 121; Jenkins v. Jenkins, 3 Ill. App. 641.

The fact must be alleged in the bill and supported by the proof. Neither the bill, nor the amendment thereto, makes any allusion to this material fact, and the proof only shows that when the bill was filed the parties were living in the same house, and eating at the same table, though they did not then, and had not, for several years prior thereto, occupied the saíne room. Husband and wife living in that way are not living separate and apart, within the terms of the statute. But in any view, the proofs can not be considered, as “ proofs without allegations are just as unavailable as allegations without proofs.” Bremer v. Canal and Dock Co., 123 Ill. 104.

The decree is reversed and the cause remanded.

Reversed and remanded.

Per. Curiam. On a petition for rehearing it is suggested that the Circuit Court, having acquired jurisdiction of the parties and subject-matter by the original bill for divorce, was authorized to grant such relief as the facts entitled the appellee to, though when the suit was commenced such facts, in part, had no existence, and are not stated in any pleading on her part.

If, on all the facts, she was entitled to the relief granted, such of them as had happened after the original bill was filed should have been brought before the court by a supplemental bill, for a decree must be based not only upon the evidence, but also upon the pleading.

As no such bill can be filed in this court, it is useless to inquire whether, upon such a bill, she would be entitled to the relief given by this decree.

Petition denied.