#### Charles J. Ohman v. Anna S. Ohman.

Gen. No. 13,429.

Divorce—when findings of decree sufficient to sustain decree of. A decree of divorce rendered in a case where the defendant was in default and the bill taken 'as confessed, is sufficiently sustained where it finds “that the allegations in the said bill contained are true as therein stated and the equities of this cause are with the complainant”—the allegations of the bill, if true, being sufficient to authorize the relief granted.

Smith, J., dissenting.

.Divorce. Error to the Superior Court of Cook county; the Hon. *252Axel Chytkatjs, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1907.

Affirmed.

Opinion filed November 22, 1907.

Anderson & Anderson, for plaintiff in error.

Charles C. Stilwell and Dale & Francis, for defendant in error.

Mr. Justice Smith

delivered the opinion of the court.

Defendant in error filed her bill for divorce against the plaintiff in error, charging him with extreme and repeated cruelty. After answer denying said charges and a replication thereto, the cause was heard before the chancellor upon the pleadings and proofs taken in the case. The only finding of the decree entered is “that the allegations in the said bill contained are true as therein stated; and the equities of this cause are with the complainant.” The decree then grants a divorce to the complainant, and provides for the care and custody of the minor children, and other matters.

No evidence was preserved in the record.

The sole ground of reversal urged is, that the finding above set forth is not sufficient to sustain the decree.

This question was passed upon by this court in Temple v. Temple, 134 Ill. App. 131. In that case a majority of the court held:

“The statute permitting oral evidence to be heard in chancery was first enacted in 1849. Since that time the Supreme Court has repeatedly held that to' sustain an affirmative decree in chancery on appeal, or writ of error, where there is in the record neither depositions nor master’s report, there must be either a certificate of evidence or the decree must contain a finding’ of facts sufficient to sustain it.

It was said in Standish v. Musgrove, 223 Ill. 500, 504, that in the absence of any evidence in the record, “the decree must specifically find the facts that were *253proved on the hearing. This is the reverse of the rule at law. Ryan v. Sanford, 133 Ill. 291; Marvin v. Collins, 98 id. 510, 511. In Standish v. Musgrove there was no finding of facts. In Eyan v. Sanford, the bill was dismissed for want of equity and the complainant appealed. There were in the record certain depositions, and the question was, whether such depositions made a case which entitled complainant to the relief prayed in his bill, and it was held that they did not.

In Marvin v. Collins, the decree found certain specific facts only, and the question was, whether the facts so found were sufficient to sustain the decree, and it was held that they were not.

In none of the cases above referred to was the question presented whether a finding that all of the allegations of the bill aré true, was a sufficient finding of facts to sustain a decree. So far as we are advised, that question has not been presented to the Supreme Court.

The language of an opinion is to be construed with reference to the facts and the questions presented in the case in which such language is used.

In Adamski v. Wieczorek, 93 Ill. App. 357, it was held that such finding was insufficient and the decree was reversed. The only case cited in the opinion in support of the ruling was Glos v. Beckman, 183 Ill. 158. In that case there was a certificate of evidence, certifying that it contained all the evidence heard upon the hearing of the case, and the decree was reversed because there was no evidence tending to prove a material fact.

In Schmid v. Schmid, 60 Ill. App. 174, such finding was held sufficient, and the decree was affirmed, Mr. .Justice Cartwright dissenting. The only case cited in the dissenting opinion was Marvin v. Collins, supra, in which,.as has been said, there was a specific finding of facts and the question now before us was not presented.

*254Section 18 of the present Chancery Act was section 19 of the Chancery Act in the E. S. of 1845, and under that section in an ordinary chancery case, where the bill is taken as confessed, neither certificate of evidence nor finding of facts is necessary to sustain the decree on error or appeal, for it cannot be assigned for error that the averments were not proved. Manchester v. McKee, 4 Gil. 510; Farnsworth v. Strasler, 12 Ill. 482.

Since 1845 the statutes of this state have contained the following provision in relation to divorce cases: “If the bill is taken as confessed, the court shall proceed to hear the cause by the examination of witnesses in open court, and in no ease of default shall the court grant a divorce unless the judge is satisfied that the cause of divorce has been fully proved by reliable witnesses.” R. S. 1843, 197, sec. 5; R. S. 1874, chap. 40, sec. 8.

This act permitted oral testimony in divorce cases ydiere the bill was taken as confessed. The act of 1849 permitted oral testimony in all chancery cases. "Under the divorce act, a court is not authorized to decree a divorce unless evidence is heard, “and the cause of divorce fully proved.”

In Hawes v. Hawes, 33 Ill. 286, which was a writ of error by the wife to reverse a decree granting a divorce to her husband, Mr. Justice Breese said: “The record shows that the bill was taken for confessed and the cause 'submitted on bill and Aral proof,’ and the court finds the facts as charged to be true. We have repeatedly decided that it is not necessary in a proceeding for a divorce when the bill was taken for confessed, that the oral proof or evidence on which the court acted should be presented in the record; it is sufficient that the record shows proof was heard sustaining the allegations of the bill. Schillinger v. Schillinger, 14 Ill. 147; Davis v. Davis, 30 id. 180, ’ ’ and the decree was affirmed.

We are unable to perceive the grounds upon which *255it can be held that a decree of divorce can be sustained on error or appeal where the bill is taken as confessed, and the decree recites that proofs were heard and contains a finding that all the allegations of the bill were proved, and that a like decree, or other affirmative decree, cannot be sustained when there was an answer and replication and the decree contains the same recital and finding.

The bill is a part of the record. The decree in this ease refers to the bill as containing the allegations which the decree finds are true as stated in the bill. The bill thus referred to became, upon general principles, a part of the decree for every purpose of construction.

In Badger v. Daenieke, 56 Wis. 678, which was a mechanic’s lien case, Mr. Justice Lyon said, p. 680: “It is claimed that' the finding that all the allegations of the complaint are true is insufficient. We think otherwise. Such a finding is but an application of the maxim, ‘cerium est quod cerium reddi potest.’ It is impossible that any party to an action can be prejudiced by the use of this form of finding.”

We have, with some hesitation, in view of the language used in some of the opinions of the Supreme Court, reached the conclusion that the finding in this decree is sufficient to sustain the decree, and it will therefore be affirmed.

The decree is affirmed.

Affirmed,.

Mr. Justice Smith dissenting.