MacKenzie v. MacKenzie

Mr. Justice Freeman

delivered the opinion of the court.

Appellant urges as ground for reversal that the bill of complaint is not sufficient to give the court jurisdiction; that the petition for ne exeat is open to the same objection; that under the separate maintenance statute the court has jurisdiction only where husband and wife are both residents either of the same county or of different counties of the state, and not where one is a resident of a different state; that appellant was privileged and exempt from arrest under civil process while in attendance as a party and a witness in this state and for a reasonable time in coming to and returning from the trial, and hence the service of the writ of ne exeat was illegal and void because secured, it is said, by fraud and issued without jurisdiction or proper showing; that the placita in this case is defective, the order of commitment vague and insufficient, and the affidavit for attachment also.

The objections to the jurisdiction, whether otherwise meritorious or not, cannot now be urged, in view of the fact that appellant answered the rule to show cause why he should not pay alimony, setting forth his defense, in part at least, on the merits. In support of his answer, he filed affidavits tending to1 show inability to pay the alimony, a matter having no bearing on the question of jurisdiction, although his answer purports to be made “under his special. and limited appearance,” and to show “that the court has no jurisdiction of the person of said defendant.” When he thus answered upon the merits, raising a disputed question of fact, he subjected himself to the consequences of a general appearance for all purposes. Dean v. Gerlach, 34 Ill. App. 233-234; Nichols v. The People, 165 Ill. 502-503; Porter v. City of Chicago, 176 Ill. 605-607; McChesney v. The People, 178 Ill. 542-548. “A special appearance must be for the purpose of urging jurisdictional questions only, and it must be confined to a denial of jurisdiction. An appearance for any other purpose than to question the jurisdiction of the court is general.” (Nichols v. The People, supra.)

In like manner, we are of opinion that appellant waived the objection now urged to the bill as a bill for separate maintenance under the statute. (R. S., chap. 68, secs. 22, 23.) He answered, disputing the claim for alimony and solicitor’s fees, on the merits. It is true, no doubt, that as a bill for separate maintenance it does not strictly follow the phraseology of the statute.and is not artistic in form; but it is nevertheless, we think, sufficient. While the bill does not in express terms state that appellee is, without her fault, living separate and apart from her husband, it does aver that appellant wilfully and without reasonable cause deserted her and their child at Chicago, State of Illinois, leaving them without means of support; that such desertion has been continuous, and that she and the child have since that time been living with appellee’s parents, averments which, in substance, comply with the requirements of the act in that respect.

It is further urged that proceedings under the separate maintenance act are required to he instituted ‘ ‘ in the county where the husband resides,” and that the courts of this state have therefore no jurisdiction over appellant, who does not reside in Illinois, but in the State of Idaho, as shown by appellant’s answer and plea in abatement and not disputed, and who did not “remove to another county in this state.” Section 22 of the act provides, however, that complainants under it “may have their remedy in equity,” and suits in equity, “if the defendant is a non-resident,” may be commenced “in any county.” (R. S., chap. 22, sec. 3.) If, however, under the bill in this case and the prayer for general relief, appellee would be entitled to a divorce, all room for question would be removed by sections 5 and 6 of chapter 40, R. S. There it is provided that “the process, practice and proceedings” under the divorce act “shall be the same as in other cases in chancery, ’ ’ except as otherwise provided. As to allowance of alimony in an action for separate maintenance it is sufficient to refer to People v. Cook County Circuit Court, 169 Ill. 201-213. We cannot concur, therefore, in appellant’s contention that as a non-resident of this state he is exempt from a suit for separate maintenance when found and served with process within the state. See also Atkins v. Borstler, 46 Mich. 552.

The objection that appellant was wrongfully arrested on the writ of ne exeat, in violation of his privilege and exemption as a witness and party to a pending suit which he had come into the state to attend, was, raised by plea in abatement. The plea was overruled by the Circuit Court and an order entered requiring defendant to pay alimony and solicitor’s fees. No appeal was prosecuted from that order, and the question of its propriety is not before us on the present appeal.

Objection is made that the order of commitment is vague and insufficient, since it is said the appellant could not leave the jail to find appellee if he concludes to make payment and purge himself from the contempt; that the order should provide a release from custody by payment to the sheriff or jailer or someone “whom the alleged contemnor is able to pay.” We are of opinion appellant will have no trouble in paying appellee, if he concludes to do so, before or after commitment .to jail.

We find no valid objection to the affidavit of attachment, nor to the jurisdiction of the court over the subject-matter and the parties. We are of opinion that the order of the Circuit Court complained of is warranted by the record, and that the latter is free from material error. The order will therefore be affirmed.

Affirmed.