{
  "id": 5130687,
  "name": "McSherry v. McSherry",
  "name_abbreviation": "McSherry v. McSherry",
  "decision_date": "1893-03-06",
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  "first_page": "90",
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      "cite": "49 Ill. App. 90"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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  "last_updated": "2023-07-14T18:20:14.004565+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "McSherry v. McSherry."
    ],
    "opinions": [
      {
        "text": "Opinion of the Court,\nWall, J.\nThis is an appeal from an order of the Circuit Court, committing appellant to jail for contempt, in failing to pay the sum of $187, as alimony, adjudged against him in a decree of divorce, at the suit of appellee.\nThe decree is a lien upon the real estate of the appellant, by express terms, and by virtue of the statute, but this does not deprive the court of the power to enforce payment by attachment for contempt. Wightman v. Wightman, 45 Ill. 167; Buck v. Buck, 60 Ill. 105; O\u2019Callaghan v. O\u2019Callaghan, 69 Ill. 552.\nThis power will not be exercised when the failure to pay is through mere inability and is not willful.\nIn many cases the defendant may have unincumbered real estate and no income of sufficient amount to enable him to comply with the decree, and there it will .usually be proper to leave the complainant to her remedy by process against the property.\nIn this instance the defendant had an income sufficiently large to make it apparent that he could easily have paid the amount. His real estate, except that included in the homestead property, which was by the decree assigned to the possession of complainant, was incumbered, and if the complainant had been forced to resort to that means of collecting the money, she would perhaps have been placed at a serious disadvantage.\nWhether she could have made the money by selling the real estate or not is unimportant, if the defendant was able to pay, and would not.\nWe are satisfied such was the case. It is argued that the complainant did not need the money, hut this is not to the point. She was entitled to it, and the defendant being able to pay, willfully refused to do so.\nThe court properly exercised its coercive power and the order should be affirmed.",
        "type": "majority",
        "author": "Wall, J."
      }
    ],
    "attorneys": [
      "Appellant\u2019s Brief, Oscar A. BisLeuw and F. D. IIcAvoy, Solicitors.",
      "Appellee\u2019s Brief, Chas. A. Barnes, Solicitor."
    ],
    "corrections": "",
    "head_matter": "McSherry v. McSherry.\n1. Alimony\u2014Contempt of Court\u2014Failure to Pay. \u2014A decree for alimony may be made, by express terms, a lien upon real estate, as well as by virtue of the statute, but this will not deprive the court of the power to enforce payment by attachment for contempt of court. Such power will not be exercised, however, when the failure to pay is through mere inability and is not willful.\nMemorandum. \u2014Appeal from an order of imprisonment for an alleged contempt of court, entered by the Circuit Court of Morgan County; the Hon. Cyrus Epler, Circuit Judge, presiding. Heard in this court at the November term, 1892, and affirmed.\nOpinion filed March 6, 1893.\nAppellee\u2019s Statement op the Case.\nAppellee filed her bill for divorce against appellant on the ground of cruelty, adultery and habitual drunkenness. The jury found the defendant guilty of extreme and repeated cruelty, and on this verdict she was granted a decree of divorce and the care and custody of the three children. She was given by her decree, the use and occupation of the homestead, and alimony to the amount of $187 a year to be paid quarterly. The defendant owned, besides the homestead, a store building worth $6,000, mortgaged for $2,800. He rcreceived as rent for the store building $50 per month, drew a pension of $8 per month, and received as bartender $50 per month, working from one-half to one-third the time.\nThis suit was an action for contempt in not paying the first year\u2019s alimony of $187. During the year the appellant received as rent $G00, as pension $96, as bartender at least $250, a total of $946. The court found the defendant in contempt and ordered him committed until he complied with the order and paid the alimony due. From this order the defendant appeals.\nAppellant\u2019s Brief, Oscar A. BisLeuw and F. D. IIcAvoy, Solicitors.\nThis record does not disclose a willful disobedience, nor a present ability to pay, and the order of imprisonment must he reversed, \u201cas the decree in behalf of complainant was made alien on the land.\u201d This quotation is from Andrews v. Andrews, 69 Ill. 609, which decides that in such case it is error to award an attachment against the body, where the decree, as in this case, expressly makes the alimony allowed a lien on appellant\u2019s land.\nAppellee\u2019s Brief, Chas. A. Barnes, Solicitor.\nCourts possess power to commit for contempt, to compel obedience to decrees for the payment of alimony. O\u2019Callaghan v. O\u2019Callaghan, 69 Ill. 552; Buck v. Buck, 60 Ill. 105; Wightman v. Wightman, 45 Ill. 167; Blake v. The People, 80 Ill. 1."
  },
  "file_name": "0090-01",
  "first_page_order": 86,
  "last_page_order": 88
}