{
  "id": 3095536,
  "name": "Rosine Holmes Kelley, Defendant in Error, v. Clark Mansur Kelley, Plaintiff in Error",
  "name_abbreviation": "Kelley v. Kelley",
  "decision_date": "1924-06-11",
  "docket_number": "Gen. No. 28,652",
  "first_page": "203",
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  "last_updated": "2023-07-14T19:12:31.592753+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "Rosine Holmes Kelley, Defendant in Error, v. Clark Mansur Kelley, Plaintiff in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Taylor\ndelivered the opinion of the court.\nThis cause comes to this court upon a transfer from the Supreme Court.\nOn January 18, 1922, the complainant Rosine Holmes Kelley, filed a bill for divorce in the superior court, charging the defendant, Clark Mansur Kelley, her husband, with extreme and repeated cruelty, and praying for a decree of divorce, the custody of their minor child, for \u201ca sufficient sum of money for her support and maintenance, and of the minor child\u201d and for suit money for the support of herself and child, pendente lite.\nSummons was issued and returned \u201cnot found\u201d and the defendant was then duly served by publication.\nOn May 16, 1922, a decree was entered granting the complainant a divorce. It contained the following:\n\u201cIt is further ordered, adjudged and decreed that the complainant be, and she is hereby awarded the sum of Twelve Dollars and Fifty Cents per week for the support of the child of the parties hereto, and the sum of Fifty Dollars for her solicitor\u2019s fees incurred in this case, and the defendant is hereby ordered and adjudged to pay to the complainant the said sum of Twelve and One-half Dollars per week, the first payment to be made upon the date of this decree, and a like sum on each and every week thereafter until the further order of this Court, and the sum of Fifty Dollars as hereinabove fixed, within 30 days from the date hereof.\u201d\nOn December 4, 1922, the complainant filed a petition in the same case, in the superior court, setting forth the filing of her original bill, service of summons by publication, the entry of the decree of May 16, 1922, in the absence of the defendant, pro confesso. The petition further represented that by the decree the petitioner was awarded $12.50 a week for the support of herself and minor child and fifty dollars solicitor\u2019s fees; that the defendant had failed to pay any of the amounts; that the provisions of the decree as to them proved unenforceable as the court did not, at the time the decree was entered, have personal jurisdiction of the defendant. It further represented that at the time of the filing of the petition, the defendant was at work in Chicago and in receipt of a large income; that she is without any means of support; and that he is now within the jurisdiction of the court and can be served with summons. The petitioner requests that he show cause why the complainant should not have the relief she asks, and that he be decreed to pay her \u201cas heretofore prayed in said bill, such sums of money for her support and maintenance\u201d and for the child\u2019s support and solicitor\u2019s fees and costs as to the court may seem proper, and that a summons be issued commanding the defendant to appear on the first day of the next term of the court.\nOn January 3, 1923, the defendant, as respondent, filed an answer. He, therein, admitted that the decree for divorce was entered on May 16, 1922; that he was served by publication; and that by the terms of the decree, \u201cAn order for alimony and solicitor\u2019s fees, to be paid by this respondent, was fixed by the court,\u201d but he charges that the decree \u201cdid not reserve the right to fix, adjust or determine alimony, if any, due to the complainant * * * and that the court was without jurisdiction to award any alimony or solicitor\u2019s fees to the complainant, upon the hearing of said case;\u201d and denies that the court has any jurisdiction to hear the petition, or that the court has any authority to enter an order for solicitor\u2019s fees, alimony or court costs against him, the respondent. In his answer he represents, further, that without an order of court, he has paid the petitioner five dollars a week for the support of the minor child.\nOn January 23, 1923, there was a hearing on the petition and answer, and evidence taken. The latter, which was the testimony of the petitioner and respondent, showed that he was employed as a sales manager and secretary for a brokerage concern, and had been for six weeks, and got $35.00 a week, $10 of which was to cover his expenses calling on the trade; that he had no other income, and that he lived with his father. The evidence showed that the petitioner had no means and no source of income.\nOn January 23, 1923, the Chancellor entered an order containing a recitation of findings covering the history of the case, and decreed that the respondent pay to the petitioner $12.50 per week as alimony for herself and the child, beginning January 20, 1923, and every week thereafter until the further order of the court. Solicitor\u2019s fees were awarded in the sum of $75.00.\nOn behalf of the defendant \u2014 respondent to the petition \u2014 the decree was objected to (1) on the ground that the court was without jurisdiction; (2) that sections 15 and 18, Chapter 40, Hurd\u2019s Statutes (1921), in so far as they authorize the recovery of alimony or solicitor\u2019s fees after entry of a final order of divorce upon service by publication, are unconstitutional; and (3) that the decree of the court violates the Bill of Bights and the Fourteenth Amendment. Concerning 2 and 3 we have no jurisdiction.\nIt is contended by counsel for the defendant, as regards the decree of May 16, 1922, that the court had no jurisdiction of the person of the defendant that would authorize a money decree or decree in personam against him. In Proctor v. Proctor, 215 Ill. 275, where the plaintiff obtained a decree for divorce \u2014the defendant having been served by a copy of the bill, and defaulted for want of an appearance, and the bill being taken pro confesso \u2014 the court said, \u201cIn so far as the proceeding at bar related to the marital relation and its dissolution the proceeding is regarded as one in rem, and the court was warranted in entering its decree dissolving the same. But the court could go no farther. It could not enter any binding decree in personam against plaintiff in error.\u201d Citing, 2 Black on Judgments, Sec. 933; 9 Am. & Eng. Ency. of Law (2 Ed.) 745; Rigney v. Rigney, 127 N. Y. 413; Pennoyer v. Neff, 95 U. S. 727.\nThe principal involved in the Proctor case (supra), Was recognized in Cox v. Cox, 192 Ill. App. 286. And in Williams v. Williams, 221 Ill. 541, where one partner sued another, and there was service only by copy of the bill, the court affirmed a decree in so far as it affected partnership property in this state, but said that the Chancellor \u201cwas powerless to enter a personal decree against the defendant.\u201d Citing Cloyd v. Trotter, 118 Ill. 391.\nIt is the law, therefore, that, where a defendant is served only by publication and he is defaulted for want of appearance, any decree against him, as far as alimony is concerned, is void.\n\"When the plaintiff, on December 4, 1922, long after term time, petitioned the court in the same proceedings for an allowance for alimony, solicitor\u2019s fees, and suit money, did the court have the right to take jurisdiction, hear evidence, and enter a decree on January 23, 1923, in the petitioner\u2019s favor?\nAs the term in which the original decree was entered had expired, it follows that whether the complainant had the right depends upon the statute and the construction of it by the courts. Section 15, Ch. 40 of Cahill\u2019s Ill. Rev. Stat. 1923, is as follows:\n\u201cIn all cases of divorce the court may require the husband to pay to the wife, or pay into court for her use during the pendency of the suit, such sum or sums of money as may enable her to maintain or defend the suit; and in every suit for a divorce, the wife, when it is just and and equitable, shall be entitled to alimony during the pendency of the suit. \u2019 \u2019\nSection 18 [Cahill\u2019s Ill. St. ch. 40, \u00b619] of the same chapter is as follows:\n\u201cWhen a divorce shall be decreed the court may make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just; and in case the wife be complainant, to order the defendant to give reasonable security for such alimony and maintenance, or may enforce the payment of such alimony and maintenance in any other manner consistent with the rules and practice of the court. And the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody and support of the children, as shall appear reasonable and proper.\u201d\nIt will be observed that that section provides that the order concerning\u2019 alimony shall be made when and at the time the \u201cdivorce shall be decreed.\u201d Those words give the court authority, and specify the time when it shall be exercised. And the last sentence in Sec. 18 [Cahill\u2019s Ill. St. ch. 40, \u00b6 19], provides that the court may make alterations in the allowance of alimony from time to time. Those words limit the court in its authority to make alterations in the allowance of alimony. They, therefore, presuppose a prior allowance of alimony. To provide for alterations in that which did not exist would be illogical. It would seem, therefore, that a petition for alimony, filed after the expiration of the term at which the decree for divorce had been granted, would not be considered as an application \u201cto make alterations in the allowance of alimony. \u2019 \u2019\nThere are decisions which hold that, where in the original decree for divorce it is provided that the consideration of the subject of alimony is reserved, independent proceedings may be inaugurated, even after the expiration of the term at which the original decree was entered, for the determination and assessment of alimony.\nIn Starrett v. Starrett, 132 Ill. App. 314, which was a divorce suit where there had been personal service, and a decree for divorce, which reserved the consideration of the question of alimony for a further order and decree therein, the court 'said, in passing upon a petition for alimony, and in sustaining the jurisdiction of the Chancellor to entertain the petition, \u201cThe prayer for alimony was incidental to the main relief sought. It was entirely in harmony with recognized equity practice to grant a final decree as to the main question, viz., the divorce, and to retain jurisdiction of the incidental matter of alimony till some later date and term for any reason which seemed to the court to justify that course.\u201d Citing Hunter v. Hunter, 100 Ill. 519; Reavis v. Reavis, 1 Scam. 242; Craig v. Craig, 163 Ill. 176; Henderson v. Craig, 179 Ill. 395; Henderson v. Kibbie, 211 Ill. 556, and Galusha v. Galusha, 138 N. Y. 281.\nIn the Reavis case, (supra), when the decree was entered the cause was continued to the next term, and then the question of alimony was considered. In the Craig case, supra, also, jurisdiction was retained by the terms of the decree.\nCounsel for the complainant cite Karcher v. Karcher, 204 Ill. App. 210, and Darnell v. Darnell, 212 Ill. App. 601. In the Karcher case, where there was a decree for. divorce without personal service, the decree especially reserved the question of alimony \u201cfor the future consideration of the court.\u201d In the Darnell case, (supra), where a bill was filed in the circuit court of Cook county, reciting that a divorce, upon constructive service had been obtained in the State of Minnesota, and that the foreign decree recited that the question of alimony was specifically reserved for consideration by the circuit court of Cook county, it was held that the latter court had jurisdiction in an independent proceeding to determine and allow alimony. In the latter case, the jurisdiction of a court to allow alimony was elaborately considered. In the instant case the complainant asked for alimony in her original bill of complaint. The Chancellor considered the subject and undertook to allow alimony, but what he did on that subject turned out to be of no practical benefit to her, as the law did not permit it, there being no personal service on the husband.\nThe question, therefore, arises whether we are entitled to consider that the subject of alimony at the time the decree was entered may be considered as having been reserved.\nThat question we feel constrained to answer in the negative. It cannot be said with reason that where* a Chancellor affirmatively makes an order which is a nullity, that, nevertheless, it may be inferred that jurisdiction of its subject matter is reserved, and that at some future time, after the expiration of the term, he may, upon petition in the original suit, again take jurisdiction of the matter involved in the void order. Our practice recognizes no such proceedings. When the term ended, the adjudication became fixed. In the instant case, no independent proceeding was instituted as in the Darnell case.\nNo jurisdiction being retained or reserved, the petitioner was barred, as far as that suit was concerned. Of course, there was nothing in the way of her instituting independent proceedings, and having the subject of alimony passed upon.\nThe decree, therefore, will be reversed.\njReversed.\nThomson, J. concurs.\nO\u2019Connor, J. dissents.",
        "type": "majority",
        "author": "Mr. Presiding Justice Taylor"
      }
    ],
    "attorneys": [
      "Cavender & Kaiser, for plaintiff in error.",
      "Charles E. Erbstein and John B. Fruchtl, for defendant in error."
    ],
    "corrections": "",
    "head_matter": "Rosine Holmes Kelley, Defendant in Error, v. Clark Mansur Kelley, Plaintiff in Error.\nGen. No. 28,652.\n1. Divorce \u2014 necessity of personal service to sustain alimony order. Where the defendant in a suit for divorce is served only by publication and he is defaulted for want of appearance, any decree against him, as far as alimony is concerned, is void.\n2. Divorce \u2014 reservation by decree of alimony questions. Where the Chancellor hearing a suit for divorce considered the subject and undertook to allow alimony but such allowance was ineffective because there had been no personal service on defendant, it cannot be considered that the subject of alimony was reserved and the court had no jurisdiction, as far as that suit was concerned, subsequently to make an order concerning alimony.\nError by defendant to the Superior Court of Cook county; the Hon. Walteb P. Steffen, Judge, presiding.\nHeard in the third division of this court for the first district at the April term, 1923.\nRehearing denied June 24, 1924.\nReversed.\nOpinion filed June 11, 1924.\nCavender & Kaiser, for plaintiff in error.\nCharles E. Erbstein and John B. Fruchtl, for defendant in error."
  },
  "file_name": "0203-01",
  "first_page_order": 231,
  "last_page_order": 238
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