text:
    Anita Grossman, Appellee, v. Samuel Grossman, Appellant.
    Gen. No. 42,016.

      Heard in the third division of this court for the first district at the October term, 1941. Reversed and remanded with directions.
    Opinion filed June 24, 1942.
    Rathje, Hinckley, Barnard & Kulp, of Chicago, for appellant; Francis E. Hinckley, of Chicago, of counsel.
    Ehblich & Cohn, of Chicago, for appellee; Benjamin H. Ehrlich and Aaron H. Cohn, both of Chicago, of counsel.
   Rehearing Opinion.

Mr. Presiding Justice Burke

delivered the opinion of the court.

On July 26, 1939 Anita Grossman filed her complaint in the superior court of Cook county. She alleged that on January 12, 1939, she married Samuel Grossman at Chicago; that they cohabited as husband and wife until on or about July 23, 1939, at which time he left her; that she was, at the time of filing the complaint, living separate and apart from the defendant without any fault on her part; and that he was a man of large means and owned three moving picture thea-tres and other properties which were held for him in the name of his son or daughter or others. On August 18, 1939, defendant moved to dismiss the complaint on the ground that the court did not have jurisdiction of the subject matter. The affidavit supporting the motion set up that on January 24, 1934, plaintiff, whose name was then “Annitta Levin Rest,” exhibited' in the superior court of Cook county her complaint against her then husband, Sigmund Rest; that in said complaint she represented that the parties were married on January 20, 1928; that they cohabited as husband and wife until November 4, 1933; that her then husband had been guilty of extreme and repeated cruelty; that on November 4, 1933, Sigmund Best deserted and absented himself from her without any reasonable cause and persisted in such desertion; that constructive service was had on said Sigmund Best; that on his failure to appear the complaint was taken as confessed against him; that after the hearing of evidence adduced in behalf of the plaintiff the court found that she had failed to sustain her allegations of extreme and repeated cruelty; that the court found that the defendant Sigmund Best had wilfully deserted and absented himself from plaintiff without any reasonable, cause for the space of more than one year immediately prior to the filing of the complaint and that the court entered its decree of divorce in favor of plaintiff and against said Sigmund Best. The affidavit also stated that plaintiff did not charge against said Sigmund Best the ground of divorce upon which the purported decree was granted, and that it appeared affirmatively from the record that the ground of divorce, namely, wilful desertion without any reasonable cause for the space of one year, did not exist at the time of the filing of the complaint and at the time the decree for divorce was entered. The defendant maintained that the supposed marriage between the parties to this cause was void because the plaintiff had another husband living and not divorced from her at the time of such alleged marriage. On September 22,1939, the court denied defendant’s motion to dismiss the complaint. On October 11, 1939, defendant filed his answer. He again asserted that his alleged marriage to plaintiff was void for the reasons set out in the affidavit accompanying his motion to dismiss. He stated that he did not acquire the knowledge on which the motion to dismiss was based until after the instant complaint was filed. He also stated that in the hearing of the divorce complaint filed by plaintiff against Sigmund Rest plaintiff testified that she had lived with said Sigmund Rest until November 4, 1933, and that on the latter date he (Sigmund Rest) deserted her without cause. He denied that during the time the parties lived together, supposedly as husband and wife, she conducted herself toward him as a good, true, loving and dutiful wife, and asserted that shortly after the marriage she commenced a course of wanton extravagance and incurred extensive obligations without his knowledge or consent; that on April 22,1939, while he was living with her at the Carolan Hotel, Chicago, he entered the South Shore Hospital for medical care; that he returned to his apartment on April 25, 1939; that during the time he was in the hospital she made no effort to see him or get in touch with him; that upon returning to his apartment on April 25, 1939, he discovered that she had departed therefrom; that he had no means of knowing where she was; that later he learned from a son of plaintiff that she had left Chicago, and had gone to Antigo, Wisconsin; that thereafter he persuaded her to return to him; that she returned on or about May 15, 1939; that they lived as husband and wife until on or about July 20, 1939, at which time defendant was required to go out of the city upon a business trip; that on or about July 30, 1939, he learned that plaintiff had again abandoned the home where the parties were living and that she had filed her complaint seeking separate maintenance. He denied that he ordered the plaintiff out of the premises, or that he abandoned her, or that he refused to live with her. He also denied that he was a man of large means, and stated that he had only a small amount of money and no real estate or any interest in real estate or in any theatres. He also denied that he had any properties or assets which he concealed in the name of his daughter or son, and asserted that plaintiff was a woman of large and substantial means. On September 29,1939, plaintiff asked the court to make an allowance for temporary alimony, solicitors’ fees and suit money. Thereupon the court referred the cause to a master in chancery “to take and report evidence with reference to the condition in life of the parties and their circumstances” with his conclusions thereon. The court retained “jurisdiction to enter any order for temporary alimony as of this date.” This order was approved on its face by the attorneys for the respective parties. Testimony was commenced before the master on October 4, 1939, and concluded on January 11, 1940. Subsequent to the entry of the order of reference, the term of the master expired. An order was entered authorizing him to continue as a. special commissioner. The special commissioner, reporting to the court, concluded that “neither plaintiff nor defendant has at present any income, in the sense of income from investments or compensation for services. It further appears, however, that in spite of the reluctance of both parties to admit the ownership of any income producing assets, each of them is able to live comfortably without the. help of the other and that, if any urgent need arose, that each of them would be able to raise a reasonable amount of money. Taking all the evidence together, it appears to me that an allowance to either party of temporary alimony is not warranted. The plaintiff has claimed an allowance on account of temporary solicitor’s fees. For the reasons indicated, it appears to me that, although when this cause comes on to be heard on the merits, it may appear that the plaintiff is entitled to solicitor’s fees, there is now no urgency in her application and that if it should become necessary for her to pay for services rendered by counsel up to date, that she is in a position to do so.” Plaintiff filed objections to the report of the special commissioner, which were overruled. These objections were permitted to stand as exceptions. On March 12,1941, the chancellor sustained the exceptions and ordered that the. defendant “pay to plaintiff the sum of $25.00 per week as temporary alimony until the further order of this court; said order is entered nunc pro tunc as of September 29, 1939. The court finds that there is due to plaintiff from defendant at this time the sum of $1,900, and defendant is ordered to pay the same within 60 days from this date in addition to current payments falling due each week beginning with this day. It is further ordered that defendant pay to plaintiff the further sum of $750 on account of her temporary attorney’s fees in two installments of $375 each, thirty and sixty days respectively after date.” On March 17, 1941, the defendant filed his notice of appeal for the purpose of reversing the last mentioned order. On June 18, 1941, plaintiff filed her petition for a reasonable amount of money weekly for her support and maintenance during the pendency of the appeal, and for a sum of money for expenses and attorneys’ fees incurred because of the appeal. The court heard the testimony of plaintiff and defendant on this petition. On July 1, 1941, the chancellor ordered the defendant to pay to plaintiff within 30 days therefrom the sum of $750 for attorneys’ fees to defend the appeal, and the further sum of $100 for her expenses in connection with the appeal. This order also directed defendant to pay plaintiff $25 every week as and for the support of plaintiff during the pendency of the appeal. From this order defendant also appealed. The appeals were consolidated in this court.

Plaintiff’s theory as to the first appeal is that she is the wife of the defendant, living separate and apart from him without fault on her part; that she is without sufficient means of her own with which to support herself during the pendency of the suit; that her husband has sufficient means with which to provide for her “notwithstanding the clumsy and ludicrous methods he has attempted in order to cover up his assets,” and that in view of all the circumstances she is entitled to an order for temporary support and attorneys’ fees; and that the order entered for such purpose was a reasonable exercise of discretion by the trial judge and in all respects proper. Plaintiff’s theory as to the second appeal is that if she was entitled to the first order for support, that it must necessarily follow that she would be unable to defend herself against an appeal from that order and would be helpless against her husband’s attack on that order unless provided by a court order for the necessary funds to defend that appeal, and that this is in accordance with the provisions of the Divorce Act. The defendant’s theory is that the provision of the statute for the allowance of temporary alimony and solicitor’s fees in a separate maintenance suit is a humane measure to be exercised in the sound discretion of the court for the benefit of wives or husbands seeking in good faith protection of the law, who appear to be unable to conduct their litigation or pay their living expenses during the pendency of the suit; that such allowance may properly be made only when it appears that the suit has been brought in good faith and that the defendant has means to comply with the order; that the allowance of attorney’s fees is not warranted unless there is some proof of value of such services, and that when the court has gone into the facts fully upon an application for temporary alimony and solicitor’s fees and is fully advised as to the circumstances, alimony and solicitor’s fees should not be allowed any more than they would be upon the final determination of the case.

The first point urged by defendant is that the record shows that the parties are not husband and wife for the reason that plaintiff’s former husband is living and undivorced, and that hence alimony cannot be awarded to plaintiff. Defendant declares that the divorce decree in the Best case has no more validity than it would have had the court granted such decree on the ground of incompatability of temperament. Plaintiff insists that the validity of the prior divorce cannot be attacked in a collateral proceeding, and that no matter how vulnerable such a decree may be in a direct proceeding by appeal, bill of review or other action, a stranger to the record, such as defendant, has no right to dispute it. The question of what shall constitute grounds for granting a divorce, or whether the marriage contract shall be dissolved under any circumstances, or for any cause, is one of public policy and belongs to the legislative, and not the judicial, department of our government. (Embree v. Embree, 53 Ill. 394.) Section 4 of the Divorce Act (sec. 5, ch. 40, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 109.172]) provides that “the Circuit Courts of the respective counties and the Superior Court of Cook County shall have jurisdiction in all cases of divorce and alimony allowed by this act.” Section 1 of the-same act (sec. 1, ch. 40, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 109.169]) authorizes the court to award a decree of divorce on the ground of wilful desertion without any reasonable cause for the space of one year. Hence, at the time the decree in the Rest case was entered, the superior court had jurisdiction to enter a decree for divorce on the ground of wilful desertion without any reasonable cause for the space of one year. Notice of the pend-ency of the complaint for divorce was given to Sigmund Rest, through the mail to his last known place of residence, and also by publication, all in accordance with the law of this State. After hearing the testimony introduced by plaintiff the court found Rest had wilfully deserted and absented himself from the plaintiff without reasonable cause for the space, of one year immediately prior to the filing of the complaint and awarded a divorce to the plaintiff on that ground. It is undisputed in the record that the complaint for divorce and the testimony in support thereof in the Rest case was to the effect that the period of desertion was from November 4,1933 until January 24,1934, being 2 months and 20 days. The testimony was heard on December 22, 1934, a little more than one year after the alleged desertion, and the decree of divorce was entered on January 2, 1935. We are of the opinion that the case of People v. Prystalski, 358 Ill. 198, while not a divorce case, serves to illustrate the principle involved. From that case it appears that Hazel Benke was charged in the municipal court of Chicago with having unlawfully in her possession a certain hypodermic needle and syringe adapted for the use of habit forming drugs, contrary to the statute in such case made and provided. She was found guilty and sentenced to serve a term of six months. Habeas corpus proceedings were instituted in the criminal court of Cook county, resulting in the discharge of Hazel Benke from custody. The State’s Attorney petitioned the Supreme Court for an original writ of mandamus directing the trial judge to expunge the record, showing the discharge resulted in the release of the prisoner. The Supreme Court held (202) that ‘ ‘ mandamus may not be invoked except where the order sought to be expunged is void for want of jurisdiction either of the subject matter, of the parties or want of jurisdiction to enter the order complained of. The only question, therefore, arising in the case before us, is whether the criminal court had jurisdiction and power to enter the order. ’ ’ The Supreme Court held that the information in the municipal court did not allege a crime, and said (205):

“It is also true that a judgment entered on such information would not be sustained on review. (People v. Berman, [316 Ill. 547]; People v. Barnes, 314 Ill. 140.) Does it follow, however, that the municipal court had no jurisdiction of the subject matter because the judgment entered was erroneous? If it had no jurisdiction of the subject matter the judgment was void and may be attacked by habeas corpus. Habeas corpus may not be used as a writ of error to review a judgment, and where such judgment is erroneous but not utterly void no jurisdiction in habeas corpus arises to review such judgment. (People v. Shurtleff, 355 Ill. 210; People v. Zimmer, [252 Ill. 9].) Jurisdiction of a court to hear and determine a cause does not depend upon actual facts alleged but upon authority to determine the existence or non-existence of such facts and render judgment according to such finding. . . . The offense charged in the information under consideration here is a misdemeanor. The municipal court of Chicago is by statute given jurisdiction of misdemeanors, and the fact that the information was open to a motion to quash because it did not sufficiently charge a crime does not establish that the court did not have jurisdiction to enter the judgment. Jurisdiction, in a general and most appropriate sense of that term as applied to the subject matter, is always conferred by law, and it is a fatal error to suppose the power to decide in any case rests solely upon the averments in a pleading. The power to hear and determine a cause is jurisdictional. It is coram judice whenever a case is presented which brings this power into action. . . . Whether a complaint does or does not correctly state a cause of action is, so far as concerns the question of jurisdiction, of no importance, for if it states a case belonging to a general class over which the authority of .the court extends then jurisdiction attaches and the court has power to decide whether the pleading is good or bad. ... We are of the opinion that the municipal court had jurisdiction of the subject matter and of the person of Hazel Renlce, and that while its judgment might have been reversed on review had a motion to quash the information been made and the question preserved, such fact did not give jurisdiction to the criminal court to review that judgment by habeas corpus. Hazel Renlce was being held on a judgment and commitment which the municipal court had jurisdiction to enter, and it follows that respondent was without jurisdiction to entertain a petition for habeas corpus, and the writ of mandamus will be awarded as prayed. ’ ’

In O’Brien v. People ex rel. Kellogg Switchboard & Supply Co., 216 Ill. 354, the Supreme, Court said (363):

“Jurisdiction is the power to hear and determine the subject matter in controversy between the parties to a suit. If the law confers the power to render a judgment or decree, then the court has jurisdiction. Jurisdiction of the particular matter does not mean simple jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which the particular case belongs. Whether a complaint does or does not state a cause of action is, so far as concerns the question of jurisdiction, of no importance, for if it states a case belonging to a general class over which the authority of the court extends, then jurisdiction attaches and the court has power to decide, whether the pleading is good or bad. Jurisdiction does not depend upon the rightfulness of the decision. It is not lost because of an erroneous decision, however erroneous that decision may be.” In Foreman Bros. Banking Co. v. Kelly-Atkinson Construction Co., 218 Ill. App. 356, we said (358):
“In urging that the judgment be reversed, the defendant first contends that the judgment was void because the declaration showed no cause of action and no jurisdiction of the court to enter it. In our opinion the judgment was not void. We need not pass upon the question of whether the declaration showed a cause of action for, assuming it did not, it would not follow that the judgment is void. It would be erroneous at most. Likewise, the sufficiency of the declaration has nothing to do with the court’s jurisdiction. A court may have full jurisdiction of an action — the parties and the subject matter — though the declaration may wholly fail to state a cause of action. It is not denied that the court had jurisdiction of the parties to this suit. The jurisdiction of a court over the subject of a given case is the power of the court to hear and determine cases of the general class to which the case in question belongs.”

The principle which controls and answers the criticism of defendant is stated in Ullrich v. Ullrich, 299 Ill. App. 460. Mrs. Ullrich filed her bill for separate maintenance on March 6, 1935, and one year and three days later, on March 9, 1936, her husband filed a cross bill for divorce. Answers were filed to both the bill and cross bill. On October 9, 1936, Mrs. Ullrich filed an amended complaint seeking divorce on the ground of cruelty. He answered, denying the charges. On December 2, 1936, an order was entered giving Mrs. Ullrich leave to amend her complaint so as to charge desertion, the answer of defendant then on file to stand to the complaint as amended. On December 16, 1936, the cause came on for hearing, both parties being represented by counsel, and a decree of divorce was granted to Mrs. Ullrich. Neither party appealed. The defendant Ullrich, approximately one year later on December 14,1937, filed a bill of review to have the divorce decree annulled for error of law, apparent on the face of the decree, namely, that his desertion as a legal ground for the decree against him, had been suspended during the period while the separate maintenance complaint filed by Mrs. Ullrich was pending. The trial court struck Ullrich’s complaint and dismissed the proceeding. On appeal this court affirmed the decree, and quoting with approval from Gray v. First Nat. Bank of Chicago, 294 Ill. App. 62, said (67): “. . . It is elementary that errors in a decree resulting from mistaken judgment going only to the correctness of the court’s decision, ... or errors resulting from a failure to present a defense existing at the time a judgment or decree is entered . . . may not be made the basis upon which equitable relief by way of a bill of review may be granted.” The superior court had jurisdiction to grant the decree of divorce in the Best case, and we are of the opinion that such decree cannot be attacked in a collateral proceeding. It follows that the marriage of plaintiff and defendant is valid.

As a second point defendant contends that the allowance of temporary alimony, attorneys’ fees and suit money is warranted only where it is just and equitable and the court must have reference to the condition in life of the parties and the circumstances of the case. He states that plaintiff does not seek relief in good faith and is not without fault, and that she has sufficient means of her own for support and to finance her suit. Defendant also suggests that an order to pay alimony must always be based on a showing of ability to pay, and that he does not have the means to comply with the court’s orders. Plaintiff accepts these statements as the law. She declares, however, that the allowance of temporary alimony, attorneys’ fees and suit money is warranted in this case and that the ability of the defendant to pay the same is amply supported by the evidence. Because of the conflicting views of what the evidence establishes, we have carefully read the transcript of the testimony and the exhibits. Both parties are well past fifty years of age. Plaintiff’s first husband was Julius E. Levin. By him she had one daughter and two sons, all of whom are living. The daughter was about 30 years of age at the time of the hearing, one son was 26 years and the other son 22 years of age. Levin died in 1926, leaving plaintiff with a large and substantial estate. She married Sigmund Best about two years after her first husband’s death, and lived with him until November 4, 1933, and obtained a decree of divorce on January 2, 1935. She married Samuel Grossman on January 12, 1939. The testimony shows that she received upwards of $100,000 on the death of her first husband. She turned over $7,000 to one of her brothers for repayment as her needs might require. She testified that at the time of the hearing she had no income and no assets other than a diamond ring, once appraised for $4,500, but for which she would take $2,000. She also possessed a couple of inexpensive rings and some household furniture which she claimed would not bring $100, and that since her separation from the defendant she was being supported by her brothers, E. C. Klipper and Alfred Klipper, both of whom have died. She also received a part of her sustenance from her two sons and claims that her brothers gave her sufficient moneys with which to buy food and for household expenses and her sons contributed to pay her rent. Since the death of her two brothers, she commenced to live with a third brother who has a meager income. One of her sons is now serving in the United States Army, and the other, who is married, has moved to California where he works in an airplane factory. It appears that prior to her marriage to the defendant, practically all of the fortune left to her by her first husband was dissipated through bad investments. The defendant was married in 1905 and lived with his first wife until her death in 1935. They had two children, both of whom are living, a married daughter, Genevieve Hanock, and a son, Marvin Grossman, who is married. Genevieve was about 30 years of age at the time of the hearing and Marvin was about 25 years. In his earlier years the defendant was a manufacturer. Later he was engaged in buying and selling real estate. In 1922 he had acquired substantial holdings and had devoted himself to taking care of his properties. Prior to his marriage to Anita, the defendant owned the Harvard Theatre building at 63rd and Harvard avenue, Chicago, consisting of 17 stores, 18 apartments, 10 offices and an 800 seat theatre. The property was bought for $320,000. In 1933 the mortgage indebtedness was $150,000. Defendant had not been making any payments thereon. The Aetna Life Insurance Company held the mortgage and was pressing Turn for payment. Plaintiff and defendant first became acquainted in January 1938, about a year before they married. Before they were married, defendant agreed to surrender his equity in the Harvard Theatre property to the life insurance company for $3,300 in cash, and plaintiff agreed that she would sign the deed. The $3,300 was paid to him. He testified that he borrowed $1,000 from an insurance company on a life insurance policy, and that it was with this $1,000 that the couple went on a honeymoon to Florida. He also testified that in 1933 his daughter Genevieve purchased the property at 6939 Wentworth avenue, Chicago, improved with a theatre known as the E. A. E. Theatre, 3 stores and 6 offices. He collected the rent for his daughter until two months prior to the hearing. The purchase price was $60,000, with $15,000 cash. At the time of the hearing there was a balance of $15,000 due on the mortgage. The rent collected for the theatre is $700 a month and $135 a month for the 3 stores. All the checks for rent were made payable to Genevieve Grossman, the maiden name of defendant’s daughter. However, all the rent is collected by the defendant. He testified that the $15,000 in cash paid for the property at 6939 Went-worth avenue came out of either the defendant’s safety-deposit box or his son’s box, and that it was money given to the daughter preceding 1931. When his daughter was about to be married, the title to the theatre was transferred to the Gén-Marv Corporation, of which the daughter owns 98 per cent and the son 2 per cent. This corporate name is a combination of the names of the son and daughter, Genevieve and Marvin. The purpose of transferring the property to the corporation was to protect the daughter when she married. Defendant testified that the Gen-Marv Corporation had no bank account; that he collected the rent checks and indorsed them “G. Grossman”; that they were cashed by him; that the cash was used by him to pay off the mortgage; that all of the cash was handled by him as the agent for his daughter in managing the property; that his daughter banked in the Northern Trust Company; that she accumulated the money collected for rent and put the same in a safety-deposit box; and that sometimes he would cash the checks and put the money in the safety-deposit box. We agree with plaintiff in her statemént that there is great confusion in the defendant’s statements as to just what happened to the money. It also appears that in 1937 defendant entered into a contract for the purchase of a theatre property located at 10555 Ewing avenue, Chicago. Immediately thereafter he assigned the contract to the East Side Theatre Corporation, which furnished the entire consideration therefor, $25,000. The outstanding stock of the East Side Theatre Corporation consists of 800 shares. A certificate for 319 shares was issued to Marvin Grossman, a certificate for one share to Samuel Grossman, and a certificate for the balance of the shares was issued to the Ellemo Corporation, which apparently was dominated by one Harry Lorsh. Marvin Grossman, son of the defendant, managed the East Side Theatre and was paid $50 a week for his services. Marvin testified that the contract for the Ewing avenue property was' acquired for the purpose of putting him in business; that the money that was paid came from his (Marvin’s) savings which had been given to him by his father; that at the time of the purchase, $11,000 in cash was paid; He (Marvin) acknowledged that four rent checks for $700. each for the theatre at 6939 Wentworth avenue went into his account as gifts from his father and that he used the proceeds of these checks in making the purchase of the Ewing avenue theatre. These are the checks which defendant testified he collected and cashed for his daughter. Defendant testified that he drove an automobile which was the property of his son. The son testified that he (the son) drives an automobile and that his father also drives an automobile, which belongs to his father. Defendant testified that when they were keeping company, plaintiff told him that her former husband had loaned her brothers sums of money amounting to about $50,000; that she had a monthly income from her brothers; that he, defendant, arranged to cash a number of monthly checks for her; that she had an apartment on Lake Shore Drive; that her rent was $90 a month or more; that she had a personal maid, expensive furnishings and her own automobile; that she had silverware in the vault worth more than $14,000 and that she exhibited to him a valuable diamond ring which she said cost $7,500. He further testified that they returned from their honeymoon in Florida on February 12, 1939; that a day or two thereafter plaintiff went to a furrier without his knowledge and purchased a mink coat for $1,300; that the coat was delivered to plaintiff, who concealed it from defendant; that she did not keep it in the hotel rooms they occupied; that he did not see it until the commencement of the instant suit, when he found a bill from the furrier and investigated; that plaintiff kept the coat on the north side where her son lived; that she put it on while on the north side and went out to parties and returned the coat to her son’s apartment and came back to the place where plaintiff and defendant lived with her old coat; that she purchased a summer dress for $90 and other items, all without defendant’s knowledge; that upon their return from Florida they took up residence in the Carolan, an inexpensive family hotel on the south side of Chicago; that on Sunday, April 23, 1939, he became ill and entered a hospital; that during the week he was in the hospital plaintiff left their home to visit her daughter at Antigo, Wisconsin; that she did not visit him or get in touch with him when he was in the hospital; that when he recovered he got in touch with her through her son and persuaded her to come back and live with him; that the parties remained together two months longer; that he was called'to Wisconsin in July on a business prospect and while there he read in a daily newspaper the account of his wife having filed a complaint against him for separate maintenance. Defendant maintains that after her second abandonment of him she resumed her previous domicile with her son and lived in’ substantially the same manner as prior to her marriage and resumed the name of her first husband.

Defendant would have us believe that for many years he has been dependent upon the bounty of his son and daughter. The evidence shows that he possessed an automobile which is his property, and that he collects the rent and manages the property on Went-worth avenue. The defendant is to be commended for having provided for his son and daughter. The purchase of the Wentworth avenue property by the daughter, which was later transferred to a corporation in which the daughter holds practically all of the stock, and the purchase of approximately 40 per cent of the stock of the corporation which owns the theatre on Ewing avenue, were made prior to the time when the defendant and plaintiff became acquainted. Therefore, it cannot be said that any of these transactions were in fraud of plaintiff’s rights. If the defendant has no interest in the two theatre properties, then the income from such properties should not be considered in determining whether the allowance of temporary alimony, solicitor’s fees and suit money should stand. If, on the other hand, the transactions were merely colorable, and the defendant is in reality the beneficial owner of the properties, then of course, we should consider the income from such properties in determining the issues before us. The son testified. The daughter did not testify. The record shows that defendant manages the Wentworth avenue property, collects the rents, indorses his name to the checks and that on some occasions he delivered such checks to his son, who applied the proceeds thereof on the purchase of the Ewing avenue property. On cross-examination, defendant, in response to a question as to whether he testified by deposition in a case wherein he, defendant, was being sued for a real estate commission, answered in the affirmative. He was also asked whether in the taking of such deposition, in answer to a question by Attorney Joseph M. Taussig as to how many shares he owned in the East Side Theatre Corporation he did not answer ‘11 own 320 shares, ’ ’ and he testified that he did not so answer. Mr. Taussig, testifying for the plaintiff, stated that he interrogated Samuel Grossman in a case in the municipal court of Chicago in which H. L. Newman & Company, a corporation, and others, were suing defendant for a real estate commission. Mr. Taussig read from the deposition of defendant and stated that defendant was asked whether he owned any stock in the East Side Theatre Corporation and that he answered in the affirmative; that in answer to a question as to how many shares he owned, he answered, “320,” and that he retained the attorney who formed the corporation. The testimony of Mr. Taussig is entitled to great weight, particularly as he read from the deposition given by defendant. These are the shares which defendant’s son claims he (the son) owns. At his age and without a competence, it is unlikely that he would retire. Apparently, he is quite active and is possessed of sufficient funds from such activity so that he does not need to seek employment other than managing the properties. It is unnecessary for us at this time to make a finding that the defendant is the actual beneficial owner of the properties on Wentworth avenue and Ewing avenue. All that is necessary is that we find that he has the ability to pay the amount which the court orders, providing the order is reasonable. It appears that the two brothers who helped to support plaintiff have died; that her sole surviving brother is not in the best of circumstances; that one son is in the army and the other son is married and living on the Pacific coast. We are of the opinion that plaintiff is entitled to an allowance for temporary alimony, solicitor’s fees and suit money. While the parties presented much testimony, the case has not been heard on its merits. We cannot say at this time that the plaintiff does not seek relief in good faith or that she is at fault. These points are disputed by the parties and can only be determined after the case has been fully presented. It will be observed that the master did not find that plaintiff lacked good faith in bringing her complaint, nor did he find whether plaintiff is or is not living separate and apart from her husband without any fault on her part. Determination of these points must necessarily await the trial of the case on the merits. So far as the case has proceeded, we are of the opinion that plaintiff is acting in good faith in the prosecution of her suit. Having considered all the circumstances, we are of the opinion that an allowance for temporary alimony at the rate of $15 per week beginning September 29, 1939, is reasonable. The record shows that he will be able to comply with such an order. At this time we are unable to say that plaintiff is possessed of sufficient funds to maintain herself while the suit is pending and to prosecute the same.

Defendant maintains that the order of September 29,1939 awarded temporary alimony in gross and that this may not be done. At the time plaintiff presented her motion for temporary alimony, solicitor’s fees and suit money, the matter was referred to a master in chancery. The court then reserved the right to enter an order for temporary alimony as of the date of the reference. Plaintiff and defendant, by their attorneys, consented to the entry of this order. It is obvious that the court did not award alimony in gross. All the court did was to allow alimony from the time the motion therefor was made. At the time the motion was entered both parties recognized that the court reserved the right to have any order for alimony that might be entered date back to the time when the order of reference was entered. Defendant finally contends that in fixing attorney’s fees the court should have regard to what is customary and usual for such services and not what the attorney himself thinks is reasonable. Plaintiff’s attorney testified that he put in more than 100 hours and that it would take 20 more hours to finish the proceedings; that he was accustomed to charging $20 an hour for trial work where the client could afford to pay such amount, and in other cases $10 an hour, and points out that .the rate allowed by the court was a little more than $6 an hour. The court directed defendant to pay $750 on account of temporary attorney’s fees and a like sum for attorney’s fees for services rendered in the appeal, plus $100 in connection with the expenses of the appeal. The court has a right to take into' consideration its knowledge of the value of the services rendered by “the very competent counsel who represents the plaintiff in this case,” as so graciously expressed by counsel for defendant. (Gentleman v. Sanitary District, 260 Ill. 317, 321.) No one will contend that a charge of $6 an hour is excessive. However, under the circumstances disclosed, we are of the opinion that an allowance of $400 for temporary solicitor’s fees and $300 for services in this appeal is appropriate although perhaps inadequate.

For the reasons stated, the orders of the superior court of Cook county are reversed and the cause remanded with directions to the chancellor to enter an order requiring the defendant to pay to the plaintiff as temporary alimony the sum of $15 per week, commencing September 29, 1939, and until the further order of the court; the sum of $400 for temporary attorney’s fees; $300 as fees for her attorney’s services in these appeals, and her expenses in these appeals not exceeding $100, and for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

Hebel and Kilby, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Burke

license: Public Domain

text:
    In re Estate of James R. Baker, Deceased. John J. Maltby, Administrator of Estate of James R. Baker, Deceased, Appellant, v. Lorena Baker et al., Appellees.
    Gen. No. 42,135.

      Heard in the third division of this court for the first district at the February term, 1942.
    Opinion filed June 24, 1942.
    John P. Derning and Chester D. Kern, both of Chicago, for appellant.
    John E. Erickson, of Chicago, for appellees.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

James R. Baker and Lorena Baker, his wife, resided at 5715 West Erie street, Chicago. A daughter Edna and her husband, Douglas E. Warwick, resided at the Baker home. Another daughter Helen was married to John J. Maltby. On September 12, 1930, James B. Baker died, leaving surviving as his heirs at law and next of kin, Lorena Baker, his widow, Leslie B. Baker, his son, and Helen Maltby and Edna Warwick, his daughters. On September 30, 1930, John J. Maltby was appointed administrator of the estate. The Aetna Casualty & Surety Company was surety on the administrator’s bond. On May 29, 1936 the surety, without notice to the heirs, petitioned the probate court to permit its petition to be accepted in lieu of a final account and to excuse the administrator from further duties. On that day an order was entered permitting the petition of the surety to stand in lieu of a final account and report by the administrator, and the administrator was discharged.

On June 19, 1940, Lorena Baker filed a petition in the probate court, pursuant to which an order was entered vacating the order entered May 29, 1936, and reopening the estate. Administrator John J. Maltby was required to file an account and report. On April 8, 1941, he filed an account and report. The account charges the administrator with the receipt of $367.42 from the Austin State Bank of Chicago, the proceeds of a checking account, and the sum of $100, the proceeds of two notes of Charles L. Casanove, dated August 10, 1930, payable 30 and 60 days after date, or a total of $467.42. The account credits the administrator with the payment of $200 to the undertakers on account of funeral expenses, $22 to the surety for the premium on the administrator’s bond, $25 to an attorney for the collection of the two Casanove notes, $90 to Frank M. Pray as interest to December 24, 1930, on a mortgage on real estate, and the further sum of $90 to Frank M. Pray as interest to June 26,1931, on a mortgage on real estate, also the sum of $6 to Frank M. Pray for a fire insurance premium, and the sum of $75 on account of attorney’s fees for services rendered. These and other disbursements, aggregated the sum of $525.80. The administrator also reported that the decedent died possessed of an undivided one-fourth interest in the fee title to the real estate at 5715 West Erie street, Chicago, subject to the dower and homestead rights of Lorena Baker, the widow, and that Lorena Baker was possessed of the balance of the title; that the entire title was subject to a $3,000 mortgage executed by decedent and Lorena Baker to Frank M. Pray; that Lorena Baker requested him (administrator) to pay the interest due on the .mortgage and the fire insurance and to charge such items to the widow’s award to be allowed to her (Lorena Baker) and to her distributive share of the estate. He further reported that the widow’s award was allowed by the court in the sum of $500, and that Lorena Baker selected to apply on such award the only chattel of the estate, a Packard automobile valued at $400; and that the automobile and the amounts paid to Frank M. Pray for interest and premium on the fire insurance policy constituted payment of the widow’s award. He then set out that a claim was allowed C. Kamp & Son, undertakers, for funeral expenses in the sum of $522.35; that he paid the undertakers the sum of $200 on account and delivered to the undertakers his personal promissory notes in the sum of $322.35 to secure the balance of the claim; and he (administrator) claimed credit for the sum of $322.35 and interest thereon, and asked that the notes so delivered to the undertakers be found to be a first class lien and chargeable against the estate. He concluded by praying that his account and report be approved, that he be allowed the sum of $58.38 advanced by him, that he be allowed the further sum of $322.35, plus interest, as a first class lien against the estate because of the notes delivered to the undertaker, that he be allowed to resign as administrator, that the court appoint a successor, that the court allow him reasonable fees for his services as administrator and reasonable compensation for the services of his attorney.

Lorena Baker, Helen B. Maltby, Edna Warwick and Leslie B. Baker filed objections. They asserted that the Packard automobile was not turned over by the administrator to Lorena Baker, nor did she select the automobile to be applied on her widow’s award; that no widow’s award was made or allowed until October 25, 1940; that the Packard automobile was purchased by decedent on the day of his death and came into the possession of the administrator; that it was sold by the administrator on or about September 23, 1930 for $650; that the administrator deposited the proceeds of such sale in his personal bank account and never accounted therefor to the estate; that the administrator was not entitled to take credit for $200 alleged to have been paid to the undertaker on account of funeral expenses for the reason that the widow loaned and advanced to him (Maltby) sums of money considerably, in excess of the $200, which advances were not repaid to the widow; that the administrator was not entitled to credit for his alleged disbursements on account of interest for the reason that the widow made advances and loans to Maltby in amounts in excess of the interest payments; that Maltby was not entitled to credit for the fire insurance premium for the reason that the widow advanced sums in excess of such amount to him; that he had not repaid to her any of the moneys so advanced; that he was not entitled to a credit of $75 which he disbursed to an attorney on account of fees, for the reason that the attorney was never employed by the estate, did not render any services for the benefit of the estate, and served only the administrator to the detriment of the heirs. The heirs also showed that in addition to the proceeds of the checking account in the sum of $367.42 and the proceeds of the Casanove notes of $100, there came into the hands of the administrator a Packard automobile, which he sold on or about September 23, 1930 for $650, or a total of $1,117.42. The objectors further pointed out that although Maltby was appointed administrator on September 15,1930, the account and report filed on April 8, 1941 was the first account or report made to the court or to anyone; that the administrator was chargeable with interest at the rate of 10 per cent per annum on all moneys, notes, bonds and credits withheld after a period of 2 years and 6 months from the date letters of administration issued to him; that the items of interest and insurance premium were not paid on account of the widow’s award, as claimed by the administrator; that the administrator neglected to have a widow’s award made and allowed until compelled to do so, pursuant to an order of court entered on October 3, 1940; and that the widow never requested Maltby to pay the interest due on the mortgage and the fire insurance premium and to charge the same to her widow’s award, or to her distributive share. Objectors further stated that out of the $1,117.42 that came into the hands of the administrator and the additional funds advanced to him by the widow, the administrator had sufficient moneys in his hands to pay the funeral bill, the widow’s award of $500, and to pay the interest item and insurance premium. They also stated that Maltby did not account for two notes of Charles Casanove, dated August 10,1930, in the sum of $50 each. The heirs filed additional objections stating that Maltby was not entitled to any credit for the notes in the sum of $322.35 which he gave to the undertakers, and that the claim of the undertakers had been allowed; that the administrator was not entitled to any fees because of his neglect in the administration of the estate; that the administrator was not entitled to have any allowance of fees for his attorney; and that all the costs and expenses incurred should be charged against the administrator. On April 24,1941, the probate court granted leave to the administrator to amend his account and report by adding this clause: 1 ‘ That your administrator charges himself with two notes of Charles L. Casanove in the sum of $50.00 each. Considered desperate.” After a trial, the probate court found that the administrator was chargeable with the proceeds of the sale of the Packard automobile in the sum of $650, less a credit of $20 expended by him for repairs to the automobile and expenses incurred in connection with the sale of the automobile. The court further found that the two interest items of $90 each, the fire insurance premium of $6 and the sum of $75 paid on account of attorney’s fees, were not proper credits to the administrator; that the administrator delivered to the undertakers his personal promissory notes in the sum of $322.35 for the balance due on the claim for funeral expenses, which notes were accepted in full payment and satisfaction of the balance of the claim of the undertakers, and that the administrator should be allowed credit for the notes when he submits to the court evidence of payment. The court also found that no selection was made by the widow as and for her widow’s award, and that the widow’s reward remains unpaid. The court ordered that the administrator recast his account and report in conformity with such findings within 10 days, and denied his request for allowance of fees to himself and his attorney. The objectors perfected an appeal to the circuit court, where the case was tried de novo. That court entered an order, finding as did the probate court. The circuit court, however, also found that the administrator was chargeable with interest at the rate of 10 per cent per annum on all moneys, funds and credits which he had in his possession or control as property or assets of the estate from the period of 2 years and 6 months following the issuance of his letters of administration. The circuit court ordered the administrator to recast his account and report in conformity with its findings within 30 days, denied his request for allowance of fees to himself and his attorney, and ordered that he pay all the costs.

Douglas Warwick and Edna Warwick lived at the Baker home. Baker and Warwick were engaged in buying and selling used cars. On the day of Baker’s death, Warwick bought a Packard automobile with Baker’s money. He drove this car at the funeral and about a week later sold it for $650, less some expenses, and turned the proceeds over to Maltby, who deposited the money in his personal account in the Austin State Bank on September 23,1930. At the time of his death, Baker carried a checking account with a balance of $621.67 in the Austin State Bank. He also had 4 notes dated September 11, 1930 for $50 each, signed by Charles L. Casanove. These were possessed by him in connection with the used car business. Decedent’s checking account was transferred to the estate. The administrator permitted the bank to deduct $255 and interest to cover a loan which had been make by Baker. This resulted in the reduction of the bank balance from $621.67 to $367.42. On April 10, 1931, Maltby, as administrator, drew a check on the account payable to himself for $200. He deposited this check in his personal account. On April 22, 1931 he drew another check on this account for $100. On June 25, 1931 he drew a check for $40 to the order of Hughes Coal Company. The balance of the bank account in the sum of $27.42 was checked out to Maltby on October 17, 1931. Maltby received payment of two of the Casa-nove notes, a total of $100, shortly after the opening of the estate. He said he used the proceeds of the collection of the notes to pay bills.

Maltby testified that about September 20, 1930 he had a conversation with the widow pertaining to the Packard automobile, which at that time was in the Baker garage. He stated that the matter of the automobile was brought up by Mrs. Baker; that Warwick and his wife were living at the Baker home; that Warwick was not employed; that the matter of Warwick selling the car was brought up; that it was proposed that the ear be sold; that Maltby agreed to the procedure ; that Warwick then sold the car; that the amount received was turned over to Maltby, who deposited it in his personal account; that Warwick purchased another car later and Maltby gave him a check for the second car; that Warwick later bought another car and Maltby gave him the money for it; that 10 or 15 cars were purchased after that; that no profits were made on the cars; that the witness was not engaged in business with Warwick; that he simply received the money and gave Warwick checks with which to buy the cars; and that the money, as it came in, was used to pay household' bills at the Baker home. Maltby further testified that in a conversation with Mrs. Baker shortly after the funeral she suggested that she take the car into her possession as a part of the estate and let Warwick sell it; that Maltby never had possession of the car; that the second car purchased cost about $400; that he kept the balance in his account; that the widow would see the cars coming in as they were kept in the garage at all times; that the proceeds of the sales were used to pay grocery bills, coal bills, light bills and telephone bills at the Baker home; and that Warwick received a commission on each automobile sale.

Maltby admitted that he did not report the situation as revealed by his testimony, to the probate court. He admitted having received $200 at one time from the widow to pay back a loan he claimed he had made for her about the time of her husband’s death; that later on he received $300 from her; and that on another occasion he received $200 from her. The court struck out the testimony of both the administrator and the widow regarding these items totaling $700. The objectors offered to show that the widow received the proceeds of the decedent’s life insurance policy of nearly $2,000, and that within the first year of the administrator’s appointment, he had received, in amounts of $200, $300, $500 and lesser amounts, a total of approximately $1,500 of her insurance money. This testimony was offered to offset the attempt of Maltby to show that as administrator he was using the estate’s funds to supply the widow and the Warwicks with funds for living expenses. Objectors point out that within a few weeks after his appointment, Maltby received the balance of decedent’s checking account, $367.42, the proceeds from the sale of the Packard car, $650, payment of the Casanove notes, $100, and $700 from the widow, or a total of $1,817.42. The administrator admitted that these items, as they were received, were deposited to his personal account in the Austin State Bank, in which he had a checking account, or were drawn out to his own order. What became of the various loans and advances made by Mrs. Baker is not disclosed. She testified that he told her they were for payrolls. Objectors point out that Maltby was appointed administrator on, September 15, 1930, but that he paid so little attention to his duties as administrator that on May 29,1936 his surety, without notice to the heirs, petitioned the court to permit its petition to be accepted in lieu of a final account and to excuse the administrator from further duties. When this action was discovered by the objectors, at their instance the probate court ordered the estate reopened and appointed appraisers to fix and allow the widow’s award. An award of $500 was thereupon made and approved by the court. Maltby obtained an order of court for leave to file an amended inventory. It was not until then that the Packard car was inventoried. The widow further testified that in the years of 1932 and 1933 she spoke to Maltby on three occasions and asked him when the estate would be settled, and about the settlement of the Casanove notes; that on one occasion he promised he would attend to it; that on another occasion he put her off, and finally he told her that “the estate wasn’t worth the ink on the paper, that the estate didn’t amount to any more than that.” The widow denied that she had any conversation with Maltby pertaining to the automobile, or that she accepted the automobile for her widow’s award. It appears that the undertakers took judgment against Maltby on his personal notes given for the balance of the funeral bill. The record shows that the judgment remains unpaid.

The administrator asserts that the probate and circuit courts are vested with equitable jurisdiction in adjusting and settling the claims of the parties, and that this court should review both the law and the facts. In Foreman State Trust & Savings Bank v. Tauber, 348 Ill. 280, 285, our Supreme Court said: “The probate courts of this State, in the adjustment and allowance of claims against the estates of deceased persons, are invested with equitable jurisdiction.” (Henry v. Caruthers, 196 Ill. 136; Estate of Ramsay v. Whitbeck, 183 Ill. 550.) In reading the record, we have kept in mind the principle announced in the Tauber case. The administrator calls attention to the part of his account wherein he sets out that the widow was allowed an award of $500, that she elected to apply the Packard automobile, valued at $400, on such award, and that by the disbursements for interest and an insurance premium he paid the remainder of her award, leaving nothing due to the widow, and he argues that the trial court erred in finding that he was chargeable with $650, the proceeds of the sale of the Packard automobile. In endeavoring to sustain this contention, Maltby calls attention to his testimony that shortly after the funeral he had a conversation with the widow in which she suggested that she be allowed to take the car as part of the estate, to which he agreed. His excuse for not reporting the situation to the probate court is that he did not know that it was necessary to do so. He also complains that the court allowed him a credit of $22 because of repairs on the Packard, whereas he testified that the repairs and advertising amounted to approximately $43. He insists that it is inequitable to require him to pay the $500 widow’s award, when the evidence shows that the funds of the estate were paid out by him for the expenses of the Baker home, where three of the objectors resided and received the benefits. Recalling the separate maintenance suit brought by Helen Maltby against him in February 1940, the administrator suggests that such action explains why the objectors,'who had done nothing from the time of his appointment in September 1930, sought to have him surcharged in 1940.

We are of the opinion that the circuit court was fully justified in the action that it took. The trial judge found that the evidence sustained the objections presented. The statement of what took place clearly shows that the administrator made no pretense of administering the estate in the manner provided by law. In evaluating the testimony, the court had a right to take into consideration the interest of the parties and the fact that the administrator’s wife was suing for separate maintenance. The fact that she was suing for separate maintenance would not necessarily indicate that she was actuated by any improper motive in attacking his administration of the estate. The Packard automobile was an asset of the estate, yet the administrator did not list it in the inventory. When called to account, he contended that it was turned over to the widow for application on her award. She denied that she had any conversation with him wherein she suggested that the automobile be turned over to her. As a matter of fact, the automobile was sold by Warwick and the proceeds delivered to and deposited in the personal account of the administrator. One of the duties of the administrator upon his appointment was to file a correct inventory, cause an appraisement of the property to be made and a widow’s award to be fixed, allowed and approved. The inventory was filed and approved. For some reason the fact that the personal property was not appraised and a widow’s award fixed and allowed, escaped the attention of the probate court at the time the inventory was approved. The award of $500 was not made until the estate was reopened at the instance of objectors. In his account the administrator endeavors to take credit for $400, the value of the Packard automobile selected, as he contends, by the widow, and $100 disbursed for her benefit in the payment of interest and .a fire insurance premium, or a total of $500. The probate and circuit courts were justified in finding that the widow did not select the automobile to be applied on her award as a widow. The items of interest and insurance premium for which the administrator sought to take credit in his account, were not owing at the time of Baker’s death. The administrator takes no title to real estate, either legal or equitable. It descends to and vests in the heirs upon the death of the ancestor. He has no control over the real estate. The heirs hold title in their own right, subject to the payment of the debts of their ancestor in the mode prescribed by law. The administrator had no interest in the land. He had the power, upon a deficiency of personal assets, to apply to the court for a decree to sell the real estate for the payment of the debts of the decedent. Futhermore, Maltby had $700 of the widow’s insurance money. If he made the two interest payments totaling $180 and the payment of the insurance premium of $6, he had ample funds of the widow with which to reimburse himself. In view of his contentions, we are of the opinion that the court should have permitted the introduction of the proffered testimony that within eight or nine months following the death of her husband, Malt-by received approximately $1,500 of the proceeds of the insurance policy left her by her husband. This testimony should have been received to contradict his claim that he was supplying the funds for the purchases of food and the payment of the various household bills.

The administrator contends that the court erred in charging him with statutory interest of 10 per cent per annum on the money which the court found he had in his possession for the period of 2 years and 6 months from the date of his appointment to the date of his accounting. The Administration Act in effect during the period covered by this case required that “all moneys, bonds, notes and credits which any administrator or executor may have in his possession or control as property or assets of the estate, at a period of two years and six months from the date of his letters testamentary or of administration, shall bear interest, and the executor or administrator shall be charged interest thereon from said period at the rate of ten per cent. . . . unless good cause is shown to the court why such should not be taxed.” (Section 114 of Administration of Estates Act, sec. 116, ch. 3, Cahill’s Statutes 1931.) The Administration Act now in effect contains a similar provision, except that the interest begins to run at the expiration' of two years. (Sec. 462, ch. 3, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 110.559].) In our opinion, the facts of this case speak for themselves, and show that the circuit court was fully justified in finding that the administrator is chargeable at the rate of 10 per cent per a.mnrm on the moneys, funds and credits which he had in his possession or control as assets of the estate from the period of 2 years and 6 months following his appointment as administrator. We also agree with the trial court that under the factual situation presented the administrator should not be allowed any fees for his services, nor should he be allowed any fees for the services of his attorneys. The services rendered by the attorneys did not benefit the estate. The administrator is entitled to a credit of $43 for the repairs made and advertising charge incurred in the sale of the Packard car. The court allowed him $22.

For the reasons stated, the order of the circuit court of Cook county entered on October 3,1941, is amended so as to give the administrator an additional credit of $21, and as amended is affirmed.

Order affirmed.

Hebel and Kiley, JJ., concur.


text:
    Maria Andersen, Appellee, v. Peter Andersen, Appellant.
    Gen. No. 42,237.

      Heard in the third division of this court for the first district at the April term, 1942.
    Opinion filed June 24, 1942.
    Luther M. Lewis and John H. Rogers, both of Chicago, for appellant.
    Daniel A. Covelli, of Chicago, for appellee; Robert J. Collins, of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

In a complaint filed in the circuit court of Cook county on October 14, 1941, Maria Andersen, plaintiff, represented that she married Peter Andersen, defendant, at Chicago on October 18,1936; that two children were born of the marriage, Gloria, four years of age, and Allen, three years of age; that on September 10, 1941, he struck her on the face; that on October 7, 1941, he wilfully deserted and absented himself from her without any reasonable cause and continued to absent himself without fault on her part; that he was employed by the Wanzer Dairy Company, where he earned $49.50 a week; that he is a strong, healthy able bodied man, presently employed and well able to maintain and support his family; that she has no separate property or any source of income whatever, and is wholly dependent upon him for support and maintenance. The complaint further alleged that “the defendant, Peter Andersen, has advised the. plaintiff that he intends to leave the jurisdiction of the State of Illinois to go to San Francisco, California, and that unless said defendant is required to post a ne exeat bond, this plaintiff, with good reason, fears that he will depart the jurisdiction of this State.” Plaintiff prayed that defendant he required to make suitable provision for the separate maintenance and support of plaintiff and the children, suitable allowance for her necessary expenses in conducting the suit, for attorney’s fees, and for her support and maintenance during the pendency of the suit; that a writ of ne exeat issue requiring defendant to post a bond in the amount of $1,000; that the writ issue without notice to the defendant, and that the bond required of plaintiff be her individual bond in the sum of $100.. Plaintiff signed and swore to the complaint. On October 14,1941, the day the complaint was filed, the court ordered that a writ of ne exeat issue without notice requiring the defendant to “post a bond in the sum of $1,000” and that plaintiff “post a complainant’s bond instanter in the sum of $100 without surety.”

A writ of ne exeat república was issued on October 14,1941, and directed the sheriff to summon the defendant to answer the complaint on the first Monday of November, 1941, and to give bail in the sum of $1,000, in the absence of which the defendant was to be committed to the common jail of Cook county to abide the further orders of the court. The writ was served on the day it was issued and the defendant was arrested. Failing to give bond, he was lodged in the County Jail. On October 16, 1941, he was brought from the County Jail to the court room so that he could be present on the hearing of a motion by plaintiff for temporary alimony and attorney’s fees. On that day the court entered an order reciting that because defendant was in custody of the sheriff in the County Jail, the motion for alimony and attorney’s fees be “continued to the date upon which the court shall hear the motion of the defendant for approval of the bond required under the ne exeat writ without further notice.” On November 27, 1941 defendant filed a verified petition stating that since October 14, 1941 he had been confined in the County Jail under the writ of ne exeat; that he had been unable to employ counsel or to perform his duties as a dairy employee; that up to the time of being taken into custody under the ne exeat writ, he had been for approximately 14 years an employee of the Sidney Wanzer Dairy Company; that he was a member of the Inside Dairy Workers Union Local No. 754; that “he has no intention, nor has he ever had any intention or desire to leave the jurisdiction of this Court or to in any way absent himself or dodge the issue of these proceedings ; that he has been a steady worker and is well able to care and provide for his family.” He prayed that he be allowed to make a showing before the court with regard to his ability to provide for his family, and concerning the statement that he had no intention of leaving the jurisdiction of the court, that the writ of ne exeat be quashed, and that he be given leave to answer the complaint. The hearing on the motion to quash the writ of ne exeat was set for November 28, 1941, at which time it was continued to December 12, 1941. It was then continued to December 15, 1941, at which time the defendant filed what he termed an ‘ additional motion to quash the writ of ne exeat. ’ ’ The grounds specified in this motion are (1) that the affidavit of plaintiff on which the writ was granted was not in accordance with the law or sections 1, 5 and 8 of chapter 97, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 109.439, 109.442, 109.445]; (2) that the affidavit was merely a part of the complaint and was not in accordance with sections 1, 5 and 8 of chapter 97; (3) that the writ was granted on a showing of conclusions and not of facts; (4) that the bond given by plaintiff was not sufficient and was not in compliance with section 5, chapter 97, Ill. Rev. Stat. 1941; (5) that neither the complaint or affidavit contained sufficient allegations of fact to warrant the issuance of the writ ; (6) that “the facts in this cause do not warrant the granting and issuance of a good writ of ne exeat.in this cause”; (7) that the bond fixed “is unreasonable and that the defendant is unable to procure said bond.” In support of his motion defendant filed the following affidavit :

“Peter Andersen being first duly sworn on oath deposes and says that he is the defendant in the above entitled cause and states that in the afternoon of the 7th day of October, 1941, defendant was called on the telephone at his place of employment with Sidney Wan-zer and Sons Dairy Company by his wife, Maria Andersen, plaintiff above named who asked him to come home immediately. Affiant, pursuant to. said telephone call, left his work and upon arriving home was confronted with police officers from the Stock Yards Station of the City of Chicago, his wife and her mother who shared the apartment with defendant and his family; that he was then and there accused of stealing from a cedar chest in the household the sum of Three Thousand Dollars ($3,000.00) which said Three Thousand Dollars ($3,000.00) the mother-in-law contended was hers; affiant states that upon the insistence of his wife and her mother he was arrested by the officers and taken to jail; that a disorderly conduct charge was placed against him, his fingerprints taken and he was also taken to the Lie Detector Laboratory by police officers of the City of Chicago and subjected to the lie detector test; that said test showed negative and that after a checkup on his fingerprints with those on the cedar chest he was taken to the court presided over by Judge Thomas Green and discharged; affiant states that during this investigation and examination he was held in jail for two days before his discharge; that after said discharge affiant returned to his place of employment with Sidney Wanzer and Sons Dairy Company; affiant further states that unknown to him on the 14th day of October, 1941 his wife caused to he filed in the Circuit Court of Cook County her complaint against this defendant for separate maintenance and that in conjunction with her complaint for separate maintenance she asked of the court that a writ of ne exeat issue against the defendant alleging that he was about to leave the State of Illinois and go to California; that the court granted said writ and fixed defendant’s bond in the sum of One Thousand Dollars ($1,000.00); that on the afternoon of the 15th day of October, 1941 affiant states that he was arrested by a deputy sheriff of Cook County while at work at his place of employment at Sidney Wanzer and Sons Dairy Company; that said officer placed him in the County Jail where he has remained on account of his inability to make bond. Af-fiant further states that a few days after his incarceration in the County Jail he was taken into the office of John J. Phillips, one of the assistant state’s attorneys in the Criminal Court Building in the City of Chicago and was again accused by his wife, the plaintiff herein, and his mother-in-law of having stolen the Three Thousand Dollars ($3,000.00) from the cedar chest heretofore mentioned; that after a thorough interrogation and examination by said Assistant State’s Attorney John J. Phillips the said John J. Phillips dismissed their complaint and discharged this affiant from further consideration in reference to the alleged theft of the said Three Thousand Dollars ($3,000.00); affiant further states that he did not take the said Three Thousand Dollars ($3,000.00), nor did he have any knowledge of either the plaintiff herein or her mother ever having Three Thousand Dollars ($3,000.-00) either in the house or in any other place whatsoever. Affiant further states that the affidavit upon which the writ of ne exeat was granted and issued out of this court is false and untrue and without any foundation whatsoever; that all the representations and allegations made therein in reference to this defendant stating to anyone that he was going to leave the State of Illinois and go to California are absolutely false and untrue and made with a malicious intent on the part of plaintiff, she well knowing the same to be untrue and false; affiant further states that he has been continuously employed for more than thirteen (13) years last past by the Sidney Wanzer and Sons Dairy Company in the City of Chicago, that he has no intention whatsoever of giving up his employment and leaving the State of Illinois or in any way placing himself beyond the jurisdiction of this court; that this affiant is advised by his employers that his job is open and they are anxiously awaiting his return to same upon his discharge from the County Jail where he is now in custody; affiant further states that he has not done any act or made any move of any kind to warrant plaintiff or any other person in saying that he was about to leave the State and placing himself beyond the jurisdiction of this court; that he had not drawn his wages from the Sidney Wanzer and Sons Dairy Company that were due at the time of his arrest; that he has not removed any of his clothing or personal effects or made any efforts to remove his clothing, his personal effects or any property of any kind that he may have beyond the jurisdiction of this court and that all his clothing and effects and property of every kind owned by this defendant to the best of this affiant’s knowledge are still in the home occupied by his family and his mother-in-law as aforesaid. Affiant further states that his bond in this case was fixed at One Thousand Dollars ($1,000.00); that he has caused to be made in Ms behalf many efforts to give bond for Ms release and that on account of the unwarranted hatred, malice and unreasonableness of plaintiff and her attorney towards affiant he has been unable to comply with their requirements in the giving of said bond.” Defendant appeals and asks that the order wherein the court refused to quash the writ of ne exeat repúb-lica, be reversed and that the writ be quashed.

In American practice the writ of ne exeat república is a process in chancery and in aid of the chancery jurisdiction of the court, issued upon cause shown, to restrain a party from leaving the State until bail be given to perform the decree of the court. Where not otherwise provided by statute, it is governed by the same principles that apply in England to the writ of ne exeat regno, wMch was a writ issued to restrain a person from leaving the Kingdom. However, sec. 1, ch. 97, Ill. Rev. Stat. 1941, provides that it shall not be necessary to authorize the granting of the writ of ne exeat república that the applicant “ should show that Ms debt or demand is purely of an equitable character, and only cognizable before a court of equity.” It is a remedy of great severity, and is applied to private rights with caution. To warrant the issuance of the writ there must be a probable or threatened departure of the defendant from the State or the country, with intent to evade the jurisdiction. Section 5 of ch. 97, Ill. Rev. Stat. 1941, provides that “no writ of ne exeat shall be granted but upon complaint or petition filed, and affidavit to the truth of the allegation therein contained.” This section requires that the court or judge “shall also cause to be taken of the plaintiff before the writ shall issue, bond with good and sufficient surety, in such sum as the court or judge shall deem proper, conditioned that the said plaintiff will prosecute his complaint or petition with effect, and that he will reimburse to the defendant such damages and costs as he shall wrongfully sustain by occasion of the said writ or any alias or pluries writ. If any defendant to any such writ of ne exeat shall think himself aggrieved, he may bring suit on such bond; and, if, on trial it shall appear that such writ of ne exeat was prayed for without a just cause, the person injured shall recover damages, to be assessed as in other cases on penal bonds.” Section 10 of the same act provides that on the return of the writ of ne exeat, the court shall proceed therein as in other cases in chancery. Section 11 provides that nothing contained in section 10 shall prevent the court from proceeding at any time to determine whether the writ ought not to be quashed. Section 12 requires that the Civil Practice Act shall apply to all proceedings under the ne exeat act, except as otherwise provided in the latter act.

It will be observed that section 5 of the ne exeat act requires that the court or judge shall take or cause to be taken of the plaintiff “before the writ shall issue, bond with good and sufficient surety, in such sum as the court or judge shall deem proper, conditioned that the said plaintiff will prosecute his complaint or petition with effect, and that he will reimburse to the defendant such damages and costs as he shall wrongfully sustain by occasion of the said writ or any alias or pluries writ.” This section does not give any discretion to the court to waive the giving by the plaintiff of a bond with good and sufficient surety in such sum as the court shall deem proper. Contrast section 5 of the ne exeat act with sec. 9, ch. 69, Ill. Rev. Stat. ■ 1941 [Jones Ill. Stats. Ann. 109.357], (the Injunctions Act) wherein the legislature has authorized the court to waive the requirement that the plaintiff shall give a bond. Had the legislature intended to vest the court with a discretion to excuse the plaintiff from giving a bond with sufficient surety, it would have manifested such intention by appropriate language. In Section 5, however, the legislature has clearly stated that the court shall take or cause to be taken of the plaintiff before the writ shall issue, a bond with good and sufficient surety. In the case at bar there was no pretense of complying with the statute. In fact, plaintiff was excused from filing a bond “with good and sufficient surety” and was permitted to file her individual bond. This was a clear violation of the statute, and on such violation being called to the attention of the court, the writ of ne exeat república should have been quashed. Moreover, a plaintiff’s bond in the penal sum of $100 would hardly ‘ ‘ reimburse the defendant such damages and costs as he shall wrongfully sustain by occasion of the said writ,” as contemplated by see. 5, ch. 97, Ill. Rev. Stat. 1941.

We are of the opinion that the verified complaint does not contain sufficient allegations to warrant the issuance of the writ of ne exeat república. Paragraph 7 of the complaint states that the defendant “has advised plaintiff that he intends to leave the jurisdiction of the State of Illinois and go to San Francisco, California, and that unless said defendant is required to post a ne exeat bond, this plaintiff with good reason fears he will depart the jurisdiction of this State.” This is the allegation upon which plaintiff bases her prayer for the writ. Plaintiff does not say when he “advised” her that he intended to leave the jurisdiction of Illinois, nor where he made such alleged statement, nor does she indicate whether his going to California was a temporary departure, or whether he intended to stay there. Her allegation that unless the defendant “is required to post a ne exeat bond, this plaintiff with good reason fears that he will depart the jurisdiction of this State” is a mere conclusion. If she feared that he intended to depart from the State with intent to evade the jurisdiction of this State, she should set up the ultimate facts upon which such fear is based. It will be observed that section 8 of the ne exeat act states that after a defendant apprehended under such a writ gives bond “no temporary departure from the State shall be considered as a breach of the condition of the said bond, if he shall return before personal appearance shall be necessary to answer or perform any judgment. ’ ’ This provision is a recognition by the legislature of the fact that in a republic like ours it is not uncommon for people to travel out of the State with the intention of returning.

It is interesting to note that plaintiff alleges that the defendant wilfully deserted her on October 7,1941, yet, the complaint contains no allegation that he at any time neglected to support her or their children. Under the rule that a pleading is taken most strongly against the pleader, the reasonable inference is that defendant did support his wife and children. It will be observed that the day defendant is accused of deserting plaintiff is the same day when, according to his affidavit, he was arrested at the instance of plaintiff and her mother. Outside of the prayer for the writ of ne exeat república, the relief asked by plaintiff is that defendant be compelled to make proper and suitable provision for the maintenance and support of plaintiff and their children. According to the allegations of the complaint, they are living separate and apart without any fault on the part of the plaintiff, hut she does not claim that he is not supporting his family.

Section 11 of the ne exeat act contemplates that the defendant may at any time request the court to determine whether the writ ought not to be quashed or set aside, and section 12 requires that the provisions of the Civil Practice Act shall apply to all proceedings under the ne exeat act, except as otherwise provided in the latter act. The motion of defendant to quash the writ of ne exeat was supported by an affidavit, which, if true, constituted ample grounds for the allowance of such motion. The order disposing of the motion indicates that no evidence was heard and that the decision was arrived at from the arguments of counsel. Clearly the affidavit presented statements of ultimate fact, which, if not true, should have been traversed. No counter affidavits were filed by plaintiff. We must assume from the record that the argument in opposition to defendant’s motion to quash raised points as to the sufficiency of defendant’s motion and supporting affidavit. In this state of the record we are required to assume as true whatever is well pleaded. The affidavit charged that plaintiff and her mother made an unfounded charge against him that he stole $3,000, which was the property of his mother-in-law; that he was arrested at the instance of his wife and mother-in-law; that he was subjected to a grilling by the police and State’s Attorney; that his fingerprints were taken; that he was subjected tó a lie detector test; that he was then charged with disorderly conduct; that when confronted with this charge in the municipal court he was exonerated and discharged; that the State’s Attorney likewise exonerated him; that he never at any time intended to leave the jurisdiction of the courts of this State; that he had been employed continuously for 13 years for Sidney Wanzer & Sons Dairy Company, that he had at all times supported his family; and that he had not removed any of his clothing or personal effects from his home where his wife and children and mother-in-law reside. If these allegations be true, the action of plaintiff in having him apprehended under a writ of ne exeat is reprehensible and an abuse of that writ. According to defendant’s affidavit, he was employed by the same firm for 13 years and was arrested by the police while actually at work. After being discharged in the municipal court he returned to his employment with the Sidney Wanzer & Sons Dairy Company. The actions of this defendant certainly do not indicate any intention to leave this State in order to defeat the plaintiff in any of her rights. On October 14, 1941 he was lodged in the County Jail, and so far as the record shows, is still there. We are informed by the attorney for plaintiff, however, that on April 28, 1942 the trial court reduced the ne exeat bond required by defendant to the sum of $400, and that the defendant is now at liberty under such bond. Apparently, the only effect of plaintiff’s action in procuring the issuance of the writ of ne exeat has been to keep her husband in jail for more than 6 months. Consequently, plaintiff and the children have been deprived of the support and the children of the companionship of defendant during that period, and he has been deprived of his liberty.

Because of the views expressed, the order of the circuit court of Cook county entered on December 17, 1941, is reversed and the cause remanded with directions to quash the writ of ne exeat and for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

Hebel and Kilby, JJ., concur.