author: Mr. Presiding Justice Sullivan

text:
    Helen Calhoun Cash, Appellant, v. Metropolitan Trust Company, Appellee.
    Gen. No. 43,712.

      Opinion filed November 19, 1946.
    Rehearing denied December 3, 1946. Released for publication December 3, 1946.
    Orr, Lewis & Orr, of Chicago, for appellant; Wallace W. Orr and Haskell F. Lamm, both of Chicago, of counsel.
    Irving B. Campbell, of Chicago, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

On April 18, 1939 the Metropolitan Trust Company was appointed successor conservator of the estate of Helen Calhoun Cash by the probate court of Cook county, she having been theretofore adjudged insane by the county court of Kane county. At that time the assets in the ward’s estate amounted to between $11,000 and $12,000. On her petition several years thereafter an order of restoration was entered by the county court of JKane county and she then filed a petition in the probate court of Cook county for the discharge of the aforesaid conservator upon the filing and approval of its final account. After such final account had been filed Helen Calhoun Cash (hereinafter for convenience referred to as the appellant) objected to several items contained therein as well as to several items contained in current accounts filed by the conservator prior to the order of restoration. The probate court entered an order overruling appellant’s objections to the challenged items and she appealed to the superior court of Cook county, which after a hearing de novo also entered an order overruling said objections and allowed.the conservator “an additional credit of $250.00 as fees and expenses for its attorney for handling the disposition of the objections aforesaid in the Probate court.” This appeal seeks to reverse the order of the superior court. Hereinafter for convenience the probate court of Cook county will be referred to as the probate court.

On May 23, 1938 appellant was adjudged insane by the county court of Kane county and committed to the Besthaven Sanitarium in Elgin, Illinois. On June 10, 1938 John L. McConnell was appointed conservator of her person and of her estate by the probate court. On September 1, 1938 she filed a special petition in the county court of Kane county in which she asserted that the order of that court adjudging her insane was void because of its lack of jurisdiction of her person. After a hearing her special petition was ordered dismissed on September 22, 1938. She appealed to the circuit court of Kane county which affirmed the county court of said county and ordered her special petition dismissed on December 3, 1938. She then perfected an appeal to the Appellate Court of the Second District, which reversed the judgment of the circuit court of Kane county and remanded the cause to said circuit court for a new trial. Pursuant to remandment the case was redocketed in the circuit court of Kane county and set for trial on May 9, 1940.

It should be stated at this point that the state’s attorney of Kane county appeared both in the county court and the circuit court of said county and contested appellant’s special petition to have the judgment finding her insane set aside as void. However, he did not appear in the Appellate Court of the Second District to defend against her appeal from the order of the circuit court of Kane county dismissing her special petition.

On May 18,1939, about eight months after appellant filed her aforesaid special petition in the county court of Kane county, McConnell, her original conservator, resigned and the Metropolitan Trust Company was appointed by the probate court as his successor. It qualified as conservator of her estate on May 19, 1939.

As heretofore stated, after remandment by the Appellate Court of the Second District, appellant’s special petition was set for trial in the circuit court of Kane county on May 9, 1940.

On April 29, 1940 the Metropolitan Trust Company filed a petition in the prohate court in which it alleged all of the foregoing matters pertaining to the adjudication as to appellant’s insanity, its appointment as successor conservator of her estate, the filing of her special petition in the county court of Kane county to have the adjudication as to her insanity declared void and the course and the result of the litigation up to that time concerning said special petition. It was further alleged inter alia in the conservator’s petition that “the County court of Kane county had jurisdiction over the subject matter and the said Helen C. Cash had actual statutory notice of the proceedings in said court [the inquisition into her sanity] and was present at said hearing and had every opportunity to present any defense she might have had; that relying upon the validity of said judgment many proceedings have been had in this court and that if the said judgment of the County court be vacated as of the date of its entry many innocent persons would be damaged”; and that “your petitioner’s attorney has been informed that the state’s attorney of Kane county, Illinois, who defended the proceedings in the county at previous trials will not do so this time, principally for want of public funds under his control for that purpose and that if your petitioner is not authorized to present a defense, no evidence will be procured and introduced in opposition to the petition and the original judgment will probably be vacated for want of anyone to defend its validity.” The conservator’s petition concluded with the prayer that “an order may be entered herein instructing and directing your petitioner as to what, if anything, it should do in the premises with respect to defending and maintaining the rights of persons who have dealt with the preceding conservator on the faith of the validity of orders and proceedings of this court.”

In response to said petition and without notice to appellant the probate court, entered an order authorizing the conservator “to employ Irving B. Campbell as its attorney to defend against the special petition of Helen C. Cash pending in the circuit court of Kane county, Illinois, on appeal from the county court of said county, and to incur on behalf of the estate such reasonable and customary expenses as to it may appear necessary and proper in connection with such proceeding. ...”

Pursuant to the foregoing order Irving B. Campbell, attorney for the conservator of the estate of appellant, defended against its ward’s special petition in the circuit court of Kane county and after a hearing said special petition was dismissed. She appealed from said order of dismissal to the Appellate Court of the Second District. The conservator resisted her appeal and the order of dismissal was affirmed. Her petition for leave to appeal to the Supreme Court of Illinois was allowed but that court ultimately affirmed the order of dismissal. She then perfected an appeal to the Supreme Court of the Hnited States, which was thereafter dismissed in March 1944 on the motion of the conservator on the ground that no federal question was involved.

Thereafter, on September 7, 1944, upon appellant’s petition the county court of Kane county entered the order of restoration heretofore referred to, which found in part that “on May 23, 1938, said Helen Calhoun Cash was found by this Court to be an insane person and committed to the Besthaven Sanitarium at Elgin, Illinois; and that on or about March 22, 1939, she was discharged from said sanitarium, and since that time has been employed in gainful occupations and has supported herself by her earnings.”

It should be noted that appellant was discharged from the sanitarium prior to the appointment of the Metropolitan Trust Company as successor conservator of her estate and that it knew of her discharge and that she was not under restraint at the time it filed its petition in the probate court asking that court to authorize it to appear in the circuit court of Kane county to oppose her special petition to have the adjudication of insanity against her declared void. It should also be noted that, during the four years the conservator was contesting its ward’s claimed right to have the insanity adjudication 'against her declared void, she was not under restraint and that the state’s attorney of Kane county made no effort to have her recommitted to the sanitarium from which she had been discharged on March 22, 1939.

As has been seen, the probate court by its order of April 29,1940 authorized the Metropolitan Trust Company to appear and defend against appellant’s special petition in the circuit court of Kane county. By subsequent orders it authorized said conservator of her estate to resist her appeals in the several courts herein-before mentioned and it also authorized the conservator to pay to itself and its attorney fees and expenses amounting to $2,487.37 out of the funds in appellant’s estate to oppose her in the aforesaid litigation. Pursuant to such prior authorization by the probate court the conservator paid said fees and expenses to itself and its attorney and took credit for such payments in its final and current accounts. It was to items in said accounts representing such fees and expenses that appellant objected.

Appellant had the right to have determined in an appropriate proceeding the question as to whether the county court of Kane county lacked jurisdiction of her person when it adjudged her insane. Having that unquestionable right, did the conservator of her estate have any authority to use its ward’s money to oppose her in the litigation she initiated to, test the jurisdiction of the court which conducted the inquisition as to her sanity or did the probate court have the power to grant it such authority on the record before us in this case?

Section 122 of the Act on Administration of Estates (par. 274, ch. 3, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 110.371]) directs that the conservator of an estate of an incompetent ‘ ‘ shall manage the estate of his ward frugally.” Section 124 of said Act directs that “the conservator of the estate of an incompetent shall appear for and represent his ward in all legal proceedings unless another person is appointed for that purpose as conservator or next friend.” The statute nowhere provides that a conservator may appear against and oppose its ward in any litigation and use funds belonging to the ward’s estate for such purpose.

The Metropolitan Trust Company concedes that the probate court had no statutory power to authorize it as conservator to oppose appellant’s special petition to have the insanity adjudication against her declared void but it asserts that it was within the jurisdiction of said court under its equitable powers to grant such authority.

The conservator’s position is that, appellant not having been restored to reason in a proper proceeding prior to the time she initiated the litigation to have the insanity adjudication against her declared void or at any time during the course thereof, she would still have been insane in fact, even though she had prevailed in such litigation; that “the statute gives the probate court power to direct the conservator in relation to the care of the estate”; that “proper care of the estate includes protection from acts of the incompetent, for such is the purpose of the appointment of the conservator in the first place”; and that “it is not in the interest of the ward or her estate that the adjudication be set aside unless she has in fact recovered, and is competent to care for her estate and manage her affairs.”

In other words the conservator attempts to sustain the jurisdiction of the probate court on the theory that the purpose of its order authorizing the Metropolitan Trust Company to oppose appellant’s special petition in the circuit court of Kane county was to protect her estate against her own possible dissipation or waste thereof. But, as will be hereinafter shown, such was not the object of the conservator’s petition to the probate court seeking its authority to oppose appellant’s special petition. In Winger v. Chicago Bank & Trust Co., 394 Ill. 94, the Supreme Court said at p. 102: “One of the tests of jurisdiction is the relief prayed for in the complaint, or the object of the suit. (Townsend v. Equitable Life Assurance Society, 263 Ill. 432.)”

It will be remembered that the only ground upon which the conservator sought authority from the probate court to defend against appellant’s special petition was, as alleged in its petition to said court, that “if the said judgment of the County court be vacated as of the date of its entry many innocent persons would be damaged.” (Italics ours.) The object of the conservator’s petition is clearly shown by the relief sought therein. The relief prayed for was that “an order may be entered herein instructing and directing your petitioner as to what, if anything, it should do in the premises with respect to defending and maintaining the rights of persons who have dealt with the preceding conservator on the faith of the validity of orders and proceedings of this court.” (Italics ours.) Thus it appears that the sole object of the conservator in seeking authority from the probate court to oppose appellant’s special petition was not, as it now contends, to prevent her from dissipating her estate but rather to protect and defend the rights of others.

The conservator, undoubtedly realizing that the probate court had no power, statutory or equitable, to authorize the expenditure of funds belonging to appellant’s estate to protect, defend and maintain rights of third persons as against her or her estate, was driven to the untenable position it now takes that the probate court under its equitable powers had jurisdiction to authorize it to oppose appellant’s special petition and to use her money for that purpose on the theory that in so doing it was protecting her estate from possible dissipation and waste by her.

Inasmuch as the prayer ■ for relief in the conservator’s petition for authority to oppose appellant’s special petition did not present for consideration and determination the matter of the possible dissipation by her of her estate, if she prevailed in the litigation concerning her special petition, the probate court did not and was not called upon to exercise jurisdiction over said matter under its equitable powers. Consequently, there is no question on the record presented to this court of the equitable power of the probate court to authorize the conservator to oppose appellant’s special petition in order to prevent her from dissipating her estate.

The conservator also contends that “the probate court has express jurisdiction over the settlement of accounts of conservators”; that “the purpose of obtaining prior court approval was to be assured of the allowance of the items in the accounting”; and that ‘ ‘ the orders theretofore determined matters related to the accounting.”

A similar contention was made and held to be without merit in Nonnast v. Northern Trust Co., 374 Ill. 248. In that case the conservator of the estate of an incompetent, with the prior approval of the probate court, made certain advances out of the funds in said estate. There it was held that the advances were made without statutory authority and that the conservator was personally responsible for all attorney’s fees, expenses and losses incurred by reason of such advances.

We have considered the other points urged and the authorities cited in support thereof but in the view we take of this case we deem it unnecessary to discuss them.

Since the sole object of the conservator’s petition seeking the authority of the probate court to oppose appellant’s special petition was to protect and defend the rights of third persons as against her and her estate and to use her money for that purpose, we are impelled to hold that the probate court had no jurisdiction to enter the order granting the Metropolitan Trust Company such authority. It necessarily follows that the expenditures in question from funds belonging to its ward’s estate were unlawfully made by the conservator and that it must restore the money so expended.

For the reasons stated herein the final order of the superior court of Cook county overruling the objections of the appellant to the conservator’s final and current accounts is reversed in toto and the cause is remanded with directions to sustain her objections to such accounts and to order the surcharge of the accounts of the conservator to the extent of $2,487.37.

Order reversed and cause remanded with directions.

Friend and Scanlan, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A. A. Mueller, Appellant, v. Howard Aircraft Corporation, Appellee.
    Gen. No. 43,853.

      Opinion filed November 19, 1946,
    Released for publication December 3, 1946.
    McCarthy, Toomey & Reynolds, of Chicago, for appellant ; Frank A. McCarthy and John E. Toomey, both of Chicago, of counsel.
    Gottlieb, Schwartz & Friedman, of Chicago, for appellee; H. R. Begley, of Chicago, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This appeal by A. A. Mueller, plaintiff, seeks to reverse a judgment order which denied his motion for summary judgment and dismissed his suit and allowed the motion of defendant, Howard Aircraft Corporation, for summary judgment and entered judgment in its favor and against plaintiff for costs.

There is no dispute as to the material facts set forth in the affidavits filed in support of the motions made by both parties for summary judgments. On or about May 1, 1941 the Howard Aircraft Corporation issued in various denominations $100,000 in Five Tear Convertible Income Debentures, payable to bearer on May 1, 1946 at the office of the Metropolitan Trust Company in Chicago. Plaintiff was the holder of one of these debentures in the principal amount of $1,000 on January 18, 1946 and had been the holder thereof for four years prior to said date. The debenture provided that it might be redeemed by the Howard Aircraft Corporation at any time before its maturity and it also provided that “the holder of this debenture may at any time prior to redemption hereof, and if not redeemed, at any time prior to the maturity hereof, upon the surrender to the Company of this debenture accompanied by all unpaid interest coupons, convert this debenture into full paid and non-assessable shares of the common stock of the Company, par value $1.00 per share, on the basis of one share of such stock for each $1.00 in principal amount of this debenture.”

The material provisions of the debenture pertaining to its redemption are as follows :

The Company may at its option redeem this debenture at any time hereafter upon payment of the principal amount hereof, plus a premium of five per cent (5%) of such principal amount, plus any unpaid interest payable for any fiscal year ended prior to the date of redemption, plus interest at the rate of five per cent (5%) per annum upon such principal amount for the period from the first day of the fiscal year in which redemption is so made to the date of redemption, . . . provided that notice of such redemption, stating the time and place of redemption, shall be published at least once each week for four (4) successive weeks prior to the redemption date in a daily newspaper of general circulation published in Chicago, Illinois. Thereupon this debenture shall become due and payable at the time and place designated for redemption in such notice, and payment of the redemption price shall be paid to the bearer of this debenture upon presentation and surrender thereof and of all unpaid interest coupons annexed hereto. Unless default shall be made in the redemption of this debenture upon such presentation, interest on this debenture shall cease from and after the date of redemption so designated. If the amount necessary to redeem this debenture shall have been deposited with the Metropolitan Trust Company . . . and if the notice of redemption shall have been duly published as aforesaid, this debenture shall be conclusively deemed to have been redeemed on the date specified for redemption, and all liability of the Company hereon shall cease on such date and all rights of the holder of this debenture, except the right to receive the redemption price out of the moneys so deposited, shall cease and terminate on such date.”

On October 23, 1945, October 30, 1945, November 6, 1945 and November 23, 1945, the defendant caused to be published in the Chicago Journal of Commerce the following notice:

“Notice is hereby given that the Five Year Convertible Income Debentures due May 1, 1946, of Howard Aircraft Corporation have been called for redemption at 110% of the principal amount thereof and will be redeemed at the office of the Metropolitan Trust Company, 11 South LaSalle Street, Chicago, Illinois, on November 26, 1945. From and after November 26, 1945, the holders of said Debentures will have no conversion rights or any other rights, except to receive redemption price.”

Apparently unaware of the publication of defendant’s redemption notice, plaintiff presented his debenture to the Howard Aircraft Corporation for conversion into 1000 shares of its common stock on January 17, 1946 and was informed that the conversion could not be made because said corporation had effected a redemption of its outstanding debentures on November 26, 1945 by reason of its publication of the aforesaid notice. Later the same day, January 17, 1946, plaintiff presented his debenture to the Metropolitan Trust Company and demanded payment of the redemption price of same in accordance with the redemption notice. Daniel J. Healy, vice president of the Metropolitan Trust Company, told plaintiff that payment was refused at that time by the trust company for no other reason than that the money to be used for the redemption had not been deposited with it by the defendant corporation or by any one in its behalf. Plaintiff was also told by Mr. Healy that the amount necessary to redeem the debenture had never been deposited with the Metropolitan Trust Company either prior or subsequent to the redemption date, November 26,1945. On the following day, January 18, 1946, plaintiff again presented his debenture to the .Howard Aircraft Corporation with a written demand on it to convert the same into 1000 shares of its common stock. Defendant refused to accept the debenture and effect the conversion thereof, claiming that it had been redeemed on November 26, 1945.

When plaintiff presented his debenture to the Metropolitan Trust Company for immediate payment on January 17, 1946, Mr. Healy told him to leave it with said trust company, which would make a requisition on defendant for the funds necessary to pay it. After the defendant corporation received plaintiff’s written demand on January 18, 1946 for the conversion of his debenture into its common stock, Eay T. Haas, the president of said corporation, told plaintiff in a telephone conversation that his demand for conversion could not be recognized because his debenture had been redeemed on November 26, 1945 and offered to pay him the redemption price of same. The parties stipulated that the market value of the common stock of the Howard Aircraft Corporation on January 18, 1946 was $3.75 a share. Plaintiff claims that he is entitled to recover $3,750 by way of damages from the defendant corporation because of the latter’s wrongful refusal to convert his debenture into 1000 shares of its common stock.

Plaintiff contends that “publication in a newspaper of defendant’s intention to redeem its outstanding debentures without depositing the money for such purpose was not a compliance with the contract between the parties and therefore did not constitute a valid redemption of plaintiff’s debenture.”

Defendant’s position is that “the publication by the defendant of the notice of redemption in a newspaper of general circulation stating the time and place of redemption, without depositing the redemption money, was sufficient under the terms and provisions of the subject debenture to effect a valid and binding redemption of the debenture held by the plaintiff.”

There is no question as to the propriety of the notice of redemption published by defendant but plaintiff insists that his debenture required as a condition precedent to its valid redemption that the money necessary to pay defendant’s indebtedness to him should have been deposited with its designated paying agent, the Metropolitan Trust Company, prior to November 26, 1945, when the outstanding debentures were called for redemption. The defendant argues that under the terms of the debenture it was not required “to deposit the redemption money with the Metropolitan Trust Company prior to the redemption day in order to make a valid redemption of the debentures.” The determination of the sole issue thus presented rests entirely on the interpretation that should be given to the applicable provisions of the debenture contract. Both parties assert that the provisions of the debenture in regard to redemption are clear and unambiguous and therefore the meaning of such provisions “must be determined from the words used and from no other source.” Abingdon Bank & Trust Co. v. Bulkeley, 390 Ill. 582.

It will be noted that the first sentence of the paragraph of the debenture in regard to redemption, heretofore set forth, afforded the defendant the option to redeem and specified the terms upon which it might redeem and the requirements of the notice of redemption and the publication thereof. The next sentence of said paragraph reads: “Thereupon this debenture shall become due and payable at the time and place designated for redemption in such notice, and payment of the redemption price shall be paid to the bearer of this debenture upon presentation and surrender thereof . . . .” The sole basis of defendant’s contention that the mere publication by it of the notice of its intention to redeem effected a valid redemption of plaintiff’s debenture on November 26, 1945 is the use of the word “surrender” in the foregoing sentence. In other words, it asserts that the word “surrender,” used as it was, immediately following the words “presentation and” can only be reasonably interpreted to mean that plaintiff was not entitled to be paid the redemption price of his debenture upon presentation thereof to the Metropolitan Trust Company for payment but that he was required not only to present such debenture for payment but to surrender it for collection to the Metropolitan Trust Company, which would then procure the funds necessary for its payment by requisition on the defendant. The parties to the debenture contract could not have contemplated that any such meaning would be attributed to the sentence under consideration or to any of the words contained therein. The language in which such sentence is phrased is simple, plain and readily understandable. It clearly states that “this debenture shall become due and payable at the time [November 26,1945] and place [Metropolitan Trust Company] designated for redemption.” It then just as clearly states that “payment of the redemption price shall be paid to the bearer of this debenture upon presentation and surrender thereof.” The presentation of the debenture to the Metropolitan Trust Company for payment, the payment of the redemption price by the Metropolitan Trust Company upon such presentation and the surrender of the debenture to the Metropolitan Trust Company for cancellation after it had been paid were unquestionably intended to be mutual and concurrent acts. Plaintiff was certainly not required under the redemption provisions of the debenture to surrender same to the Metropolitan Trust Company for collection from the defendant.

The next sentence of the paragraph in question reads: “Unless default shall be made in the redemption of this debenture upon such presentation [not surrender], interest on this debenture shall cease from and after the date of redemption so designated.” This sentence can only mean that if defendant had deposited funds prior to November 26, 1945 with the Metropolitan Trust Company for the redemption of its outstanding debentures upon their presentation on and after said date, it would be relieved from paying interest on said debentures after the redemption date.

That the construction of the redemption provisions of the debenture contract for which defendant contends is farfetched and unreasonable is clearly demonstrated by the sentence contained therein which reads: “If the amount necessary to redeem this debenture shall have been deposited with the Metropolitan Trust Company . . . and if the notice of redemption shall have been duly published as aforesaid, this debenture shall be conclusively deemed to have been redeemed on the date specified for redemption, and all liability of the Company hereon shall cease on such date and all rights of the holder of this debenture, except the right to receive the redemption price out of the moneys so deposited, shall cease and terminate on such date. ’ ’ The language used in this sentence requires no construction, since it is as clear a statement as could be made that if the redemption price was deposited with the Metropolitan Trust Company and notice of redemption duly published, the debenture “shall be conclusively deemed to have been redeemed.” The converse must necessarily follow, that if defendant did not deposit the redemption price or did not make the required publication of notice of its intention to redeem, then the debenture shall not be deemed to have been redeemed.

In our opinion no other reasonable interpretation of the redemption provisions of plaintiff’s debenture is possible than that the defendant corporation could not effect a valid redemption thereof unless it made the required publication of notice of its intention to redeem and unless it deposited with its designated paying-agent, the Metropolitan Trust Company, prior to November 26, 1945, the redemption date, sufficient funds to pay plaintiff the redemption price of -his debenture.

Plaintiff’s option to convert his debenture into common stock of the defendant corporation represented a substantial right, as did defendant’s option to redeem said debenture. Therefore in order for defendant to deprive plaintiff of his right to convert, it was required to exercise its option to redeem in strict conformity with the redemption provisions of the debenture contract. This it did not do.

Defendant argues that it did not refuse to pay plaintiff the redemption price of his debenture. It is sufficient answer to this argument to state that plaintiff had the right to have his debenture redeemed in accordance with its terms.

Since defendant did not effect a valid redemption of plaintiff’s debenture, it follows that there was no redemption of same and the rights of the parties were the same as they were before the publication of the notice by Howard Aircraft Corporation of its intention to redeem. Therefore plaintiff properly exercised his right to convert his debenture on January 18, 1946, which was prior to the date of its maturity, and the wrongful refusal of defendant to comply with his demand for conversion constituted a breach of the debenture contract. In Denney v. Cleveland & P. R. Co., 28 Ohio St. 108, in passing upon the right of a bondholder to sue for damages for failure to convert his bond into stock upon his demand, the court said at pp. 112-113:

“Or, 3. He (the bondholder) might stand upon and abide by the election and demand already made, and on his right to convert the bond into capital stock; and might by action recover, by way of damages for the breach of the contract, 'the full market value of the stock wrongfully withheld from him. But such recovery would be a bar to any other or further suit on the bond; and the payment of such damages would place the defendant in the same legal position as though the stock had been issued upon demand. ’ ’

Inasmuch as plaintiff had the right to have his debenture converted into 1000 shares of common stock of the Howard Aircraft Corporation and the market value of such stock was $3.75 a share on January 18, 1946, when he made his demand for conversion, he is entitled to recover $3,750 as damages and interest on said amount at the rate of 5 per- cent per annum from said date.

For the reasons stated herein the judgment order of the circuit court of Cook county is reversed in toto and the cause is remanded with directions to deny defendant’s motion for summary judgment, to allow plaintiff’s motion for summary judgment and to enter judgment in favor of plaintiff and against defendant for $3,750 with interest on said amount at the rate of 5 per cent per annum from January 18, 1946.

Judgment order reversed and cause remanded tuith directions.

Friend and Scanlan, JJ., concur.


author: Mr. Justice Friend

text:
    Dorothy E. Russell, Appellee, v. Joseph G. Russell, Appellant.
    Gen. No. 43,838.

      Opinion filed November 19, 1946.
    Released for publication December 3, 1946.
    Welch & Hoffman, of Chicago, for appellant; Abraham W. Brussell, of Chicago, of counsel.
    Schwartz & Cooper, of Chicago, for appellee; Norman H. Nachman and Robert B. Cook, both of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court. ■

Defendant appeals from an interlocutory order entered May 29, 1946 restraining him from proceeding with or prosecuting any divorce action against plaintiff in the State of Nevada or in any State other than Illinois, until the disposition of a pending separate maintenance suit brought by plaintiff in the superior court of Cook county wherein defendant has filed an answer and counterclaim for divorce.

Subsequent to their marriage in 1937 the parties resided in Chicago until their separation on July 10, 1941. On November 28 of that year plaintiff filed a complaint against her husband asking for a divorce on the ground of cruelty, which defendant answered on December 3, 1941 with a denial of the substantial allegations of the complaint. Thereafter, on January 20, 1942, he obtained leave of court and filed a counterclaim averring that “he resides in the County of Cook; and has resided in the State of Illinois for more than one whole year next before the filing of this Counterclaim,” charging two specific acts of cruelty and asking for a divorce on that ground. Later he joined the armed forces, and the cause was placed on the military calendar. He was released from military service some time prior to May 1946.

On May 10, 1946 plaintiff’s father filed a petition alleging that his daughter was seriously ill suffering from an incapacitating mental illness and nervous ailment which so affected her emotions as to make it impossible for her to comprehend the issues involved in the action, or to prosecute her suit, or defend her personal and property rights in connection with defendant’s counterclaim, and the court thereupon appointed Howard Blum as guardian ad litem.

Subsequently, on May 13, 1946, plaintiff, by her guardian ad litem, obtained leave of court and filed an amended complaint for separate maintenance and support, and at the same time asked for the allowance of temporary alimony, solicitors’ fees and suit money.

On May 20, 1946 plaintiff, by her guardian ad litem, had leave to file instanter a petition for an order to restrain defendant from filing any proceeding or continuing with the prosecution of any suit for divorce or other domestic or matrimonial relief against plaintiff in any Nevada court or in any court other than in the State of Illinois until the disposition of plaintiff’s action for separate maintenance, defendant’s counterclaim for divorce, or until the further order of court. An order was entered granting defendant leave to answer the petition within five days, and the cause was set for hearing on the petition and answer at 10:30' in the forenoon on May 29,1946.

May 24,1946, which was four days after the filing of plaintiff’s petition for a restraining order, defendant filed a divorce proceeding against plaintiff in the County of Washoe, Second Judicial District Court of the State of Nevada, and on May 29, 1946 he filed his answer to plaintiff’s petition wherein he admitted “that he has filed an answer and counterclaim herein; that he has submitted himself to the jurisdiction of this court,” but denied “that such submission in any way operates to preclude him from making an actual and bona fide change in his place of residence,” and averred “that his establishment of a residence in the State of Nevada is actual and bona fide and that the same has not been done for any fraudulent or improper purpose.”

Pursuant to a hearing on May 29,1946, wherein both parties were represented by their respective counsel, Judge Schwaba entered a decree finding that defendant had gone to the State of Nevada and “there established a fictitious and colorable residence for the purpose of fraudulently obtaining a divorce from plaintiff, and that such action by defendant constitutes a fraud upon plaintiff and is in furtherance of defendant’s plans to evade the statutes of the State of Illinois and is in fraud of the laws and public policy of this State; that plaintiff, Dorothy E. Bussell, is seriously ill and is suffering from an incapacitating mental illness and nervous ailment and is without personal income, property or means with which to support or maintain herself, and that she will be burdened with great physical and financial hardships if she is compelled to defend a divorce action against her in the State of Nevada; that defendant, Joseph G-. Russell, is a bona fide resident and citizen of the State of Illinois and has been such a resident and citizen for many years last past; that this court has jurisdiction over the defendant by virtue of his appearance and counterclaim filed in this cause and by virtue of notice of said petition for restraining order having been served upon . . . his attorneys in this cause, due notice of said petition having been given in writing to said attorneys for defendant who were present in open court representing said defendant upon the hearings had in connection with said petition for restraining order”; and by said order the court restrained defendant from “continuing with the prosecution of any complaint, petition or proceeding for a divorce or other domestic or matrimonial relief against plaintiff in any court of the State of Nevada or of any other State or country other than the State of Illinois, and particularly from proceeding further with that certain action for divorce commenced by him against the plaintiff herein on May 24, 1946, entitled ‘Joseph G. Russell vs. Dorothy Block Russell,’ in The Second Judicial District Court of the State of Nevada, in and for the County of Washoe, . . . until the disposition by this court of plaintiff’s action for separate maintenance and support and defendant’s counterclaim for divorce, which matters are presently pending before this court, or until the further order of the court.” The decree at the same time denied defendant’s motion to withdraw his counterclaim.

As the principal ground for reversal it is urged that the chancellor erred in restraining defendant from proceeding with the divorce suit instituted in Nevada. We think Kahn v. Kahn, 325 Ill. App. 137, recently decided by this division, is precisely in point. In the exhaustive opinion written by Mr. Justice S can-ear- in the Kahn case, reviewing the leading cases on the subject in this and other States, we concluded that the injunction order was properly issued. In that case the wife had filed a suit for separate maintenance in the superior court of Cook county, and without notice or bond obtained a temporary injunction restraining her husband from carrying out an alleged threat to institute a matrimonial action in Nevada. In this proceeding defendant had due notice of the motion for a temporary restraining order, was granted leave to file his answer, and actually participated in the hearing. The only substantial difference between the two cases is that in Kahn v. Kahn the husband had merely threatened to obtain a divorce in Nevada without having actually gone there to establish residence for that purpose or instituted proceedings in the foreign State, whereas in this proceeding the defendant had filed suit in Nevada just four days after plaintiff’s petition for a restraining order had been filed. We held in the Kahn case that although a temporary injunction restraining defendant from instituting divorce proceedings in any State other than Illinois, wherein he was domiciled, did not prevent him from changing his domicile, nevertheless the aggrieved spouse was entitled to an injunction restraining the institution of proceedings in a foreign State until the separate maintenance suit then pending in Cook county, wherein the court had jurisdiction of both parties, was adjudicated, and we said that if plaintiff in her complaint for separate maintenance had alleged that defendant had commenced divorce proceedings against her in Nevada, she would have had the right to a temporary injunction to prevent bim from further prosecuting the Nevada proceeding. The import of the Kahn decision is that where separate maintenance or divorce proceedings are pending in the county .where the parties have been domiciled and either spouse leaves the State or domicile and acquires a nominal or colorable residence in a foreign State in order to bring divorce proceedings, the aggrieved spouse is entitled to an injunction restraining the other spouse from instituting divorce proceedings in a foreign State based on a pretended domicile, and that since an injunction would lie to prevent the defendant, in this jurisdiction from prosecuting an action in another State, it followed that an injunction would issue where the defendant here had threatened such procedure. The fact that defendant in this proceeding had already filed suit for divorce in Nevada makes the ground for injunctive relief even more justifiable. The important circumstance in both cases is that the Cook county court had jurisdiction of the parties, and as said in Royal League v. Kavanagh, 233 Ill. 175, “There is no question as to the right to restrain a person over whom the court has jurisdiction from bringing a suit in a foreign State. (Harris v. Pullman, 84 Ill. 20.) The courts do not, in such cases, pretend to direct or control the foreign court but the decree acts solely upon the party. The jurisdiction rests on the authority vested in courts of equity over persons ivithin the limits of their jurisdiction and amenable to process, to stay acts contrary to equity and good conscience. The State has power to compel its own citizens to respect its laws even beyond its own territorial limits, and the power of the courts is undoubted to restrain one citizen from prosecuting in the courts of a foreign State an action against another which will result in a fraud or gross wrong or oppression. ’ ’

Aside from the principal ground urged for reversal, defendant argues that “the amended complaint which initiated the separate maintenance proceedings contained no allegation specifically concerning the Illinois County in which either the plaintiff or defendant resided,” and that “neither the petition for the restraining order, the defendant’s answer thereto, nor the order granting the temporary injunction contained or made any affirmative allegation or finding that either the plaintiff or the defendant resided in .Cook County, Illinois.” It is the well settled rule in this State, however, that in determining jurisdiction the court will examine the entire record before it. (Eick v. Eick, 277 Ill. App. 329; Augenstein v. Augenstein, 275 Ill. App. 18.) In this proceeding defendant in paragraph 1 of his counterclaim specifically admitted that he was a resident of the County of Cook and the State of Illinois. In his answer to the petition for a temporary restraining order filed May 29, 1946, he admitted that he had submitted to the jurisdiction of the superior court, and the chancellor in entering the temporary injunction found that there were then pending before the court plaintiff’s amended complaint for separate maintenance and defendant’s counterclaim for divorce, and that the court had jurisdiction over the defendant by virtue of his appearance and counterclaim. Under the circumstances we think defendant’s contention is utterly without merit.

The remaining ground urged for reversal is that the temporary injunction was void because it was improvidently granted without bond, in violation of section 9 of the Injunction Act (Ill. Rev. Stat. 1945, ch. 69 [Jones Ill. Stats. Ann. 109.357]), A similar contention was advanced in Kahn v. Kahn, where the injunction was granted in an ex parte proceeding and where defendant’s objection thereto was held to be without merit. It should be noted, however, that this was not an ex parte proceeding. A copy of the petition had been served upon defendant prior to its presentation to the court. Plaintiff was allowed to file her petition and defendant was granted five days within which to answer. He did in fact file a complete and full answer. Neither in his answer nor in his argument in the trial court did he refer to this omission in the petition. In fact he and his counsel remained absolutely silent on the matter, both in their pleadings and during the hearing. They did not indicate or suggest in any manner that the issuance of the injunction order without bond would cause defendant any hardship, financial or otherwise. Section 9 was enacted for the benefit of the party against whom the restraining order is sought, and of course he may waive that requirement if he sees fit to do so. All the circumstances in this proceeding indicate that defendant waived the requirement of section 9 by failing to suggest or insist on the provision of that section, and he is therefore not in a position to urge that the interlocutory order be reversed on that ground.

Defendant’s belated oral motion to withdraw his counterclaim, made during the hearing on petition and answer for restraining order, on May 29, 1946, after the chancellor had indicated in open court that he had been deceived by defendant’s conduct and that a restraining order should issue, was properly overruled.

For the reasons indicated, the temporary injunction should be affirmed, and it is so ordered.

Temporary injunction affirmed.

Sullivan, P. J., and Scanlan, J., concur.


author: Mr. Justice Scanlan

text:
    Charles Crook, Appellant, v. Irene L. Crook, Appellee.
    Gen. No. 43,505.

      Opinion filed November 19, 1946.
    Released for publication December 3, 1946.
    Urban A. Lavery, of Chicago, for appellant.
    Ellis & Westbrooks, Kimball Smith and Edward M. Byrd, all of Chicago, for appellee; Richard E. Westbrooks, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

On February 23, 1940, Charles Crook, plaintiff, filed a complaint for divorce in which he charged his wife, Irene L. Crook, defendant, with cruelty and habitual drunkenness. Defendant filed an answer denying the charges and also filed, on March 18, 1940, a counterclaim asking for separate maintenance. Several months after defendant filed her counterclaim plaintiff filed an amendment to his complaint in which he charged defendant with committing adultery with one John Doe. The cause came on for trial in 1943, before Judge Schwartz and a jury, and a verdict was returned'finding defendant guilty of adultery and habitual drunkenness: The jury further found that defendant, counter-plaintiff, was not living separate and apart from plaintiff without fault on her part. Plaintiff produced as witnesses Vera Roberts and Aaron A. Anderson, who gave testimony tending to prove the charge of adultery. Shortly after the return of the verdicts defendant filed a verified motion for a new trial which contains, inter alia, the following:

“Since the hearing on motion for new trial, the defendant has become apprised of the fact that the testimony of the witnesses for the plaintiff presented to the court to sustain his charges of Adultery, is fraudulent and untrue. The witnesses who testified in support of the plaintiff’s charge of Adultery, Aaron Anderson and Vera Roberts, have made an affidavit stating that the testimony which they gave at the trial of the cause, was false and untrue.

‘ ‘ That from the affidavits attached hereto, it appears that the plaintiff, Charles Crook, well knew that the testimony of the witnesses, Aaron Anderson and Vera Roberts, was untrue, before he offered them as wit-' nesses on said trial; that the said Charles Crook has imposed upon the court by his conduct in having the said witnesses to give to the court false and untrue testimony against the defendant.

ii

‘ ‘ The information which clearly establishes the fact that there was no basis for the charge of Adultery, came to the defendant’s knowledge through the following affidavits made by the plaintiff’s witnesses Aaron Anderson and Vera Roberts in the presence of a Notary Public and a witness, and a copy of the said affidavits are attached hereto, as an additional reason for the granting of a new trial.

“Wherefore, the defendant moves that the verdicts of the jury be set aside and that she be granted a new trial. ’ ’

Vera Roberts states in her affidavit that “the said Charles H. Crook induced her to testify in his behalf in the recent divorce case heard before the Honorable Judge Ulysses S. Schwartz. ■. . . that during the months of June, July, August and September of 1939 and April and May of 1940, she did not see Cora Griffith at 439 East 48th Street and that she was not present at any time with the said Cora Griffith as so testified before the Court, at the above address. . . . that the testimony as given before the Honorable Judge Ulysses S. Schwartz was incorrect and that she did not at any time see the said Irene Crook in the adulterous act with John Doe in a bedroom. . . .”

Anderson states in his affidavit that he would not have testified against defendant if she had not taken furniture that belonged to him and refused to return it; that plaintiff promised him that he would reimburse him for the furniture and that plaintiff did give him $150 as a part of the said reimbursement; “that the testimony given at the hearing in the above mentioned matter concerning the alleged adulterous acts of the said Irene Crook and John Doe, unknown to him, was not correct and he was at the time residing at 531 East 41st Street. . . . that he has never seen Irene Crook in any bedroom with any man at any time. . . . that he was never at any time present at 439 East 48th Street when Corry Griffith and Vera Robinson were at the above address. . . .”

Thereafter Judge Schwartz entered an order 1 ‘ that the motion of the defendant Irene L. Crook to set aside the verdicts of the jury . . . and to grant her a new trial, be and the same is hereby allowed, and the said several verdicts are hereby set aside and a new trial is hereby granted to the said Irene L. Crook. ’ ’

The strained argument of plaintiff, that the record does not clearly show that Judge Schwartz granted defendant a new trial upon the ground that the verdicts of the jury had been procured by perjured testimony, is an afterthought and without merit. Indeed, plaintiff admitted, in effect, the truth of defendant’s charge in her motion for a new trial when he thereafter abandoned that particular charge of adultery and in his amended complaint, filed June 2, 1944, made no mention of that charge but made a new and different charge of adultery, viz., that defendant committed adultery with John Doe on the night of May 28-29,1944. In the face of the record, that plainly shows that plaintiff procured the verdicts of the jury in the first trial upon perjured testimony procured by him, his present counsel, who took no part in the trial of the cause, makes the bold claim that “the trial Court should have started out on this second trial — as this Reviewing Court must start on this Record — with the damaging fact (so far as Mrs. Crook is concerned) that she had been found guilty of adultery by a jury on the first trial of this case,” and “she stood before the trial Court — and she now stands before this Reviewing Court — with a stain on her character, because a jury of her peers has found her guilty of prior marital misconduct. ’ ’ The second trial of this cause, upon the amended complaint, took place before Judge John C. Lews, without a jury. The trial started in December, 1944, and did not end until some months thereafter. The transcript of the testimony contains 1,592 typewritten pages and the contention of defendant, strenuously argued, that the transcript filed is not a complete record of the proceedings, is not without some merit. On June 22,1945, Judge Lews entered, nunc pro tunc as of June 19, 1945, a second final decree — a supplemental decree. In the decree entered by Judge Lews on March 9, 1945, it was decreed, inter alia:

“That the equities are with the defendant, Irene L. Crook, and that she has fully sustained the allegations of her counterclaim for separate maintenance, and is entitled to a Decree of Separate Maintenance, as provided by the Statute;

“That the plaintiff, Charles Crook, has failed to sustain the charges made in his Amended Complaint, and the said Amended Complaint should be dismissed for want of equity at the costs of the plaintiff;

“That the defendant, Irene L. Crook, is now living separate and apart from the plaintiff, Charles Crook, without any fault on her part;

“That the defendant, Irene L. Crook, is entitled to an allowance under the Statute of Separate Maintenance, attorneys’ fees, and such other costs and expenses as may be found to be reasonable and just in this cause.”

Plaintiff appeals from that decree.

Plaintiff contends that “trial court erred in not finding the issues of fact from the evidence in favor of the Plaintiff Husband and granting him a divorce; and in not finding the issues of fact on Defendant’s counterclaim against her and denying her any relief by way of separate maintenance”; that “the finding of the trial Court in favor of Mrs. Crook on the evidence in this Record is an incomprehensible thing and a shocking miscarriage of justice.”

The parties were married May 25, 1919. Plaintiff was then a Pullman porter and defendant was a teacher in the public schools of Tennessee and had previously taught in the Colored Agricultural and Normal University in Langston, Oklahoma. Neither of the parties was then possessed of any considerable means. Subsequent to the marriage plaintiff engaged in the business of an undertaker and his place became known as the Crook Funeral Home. Defendant materially assisted him in the .conduct and development of the business until 1939, when plaintiff refused to allow her to have anything further to do with the business. The parties had one child, Dolores, who is now married to a man named Collins. Defendant’s health became impaired in 1936, after which time she suffered numerous illnesses, one of which, pneumonia, confined her in a hospital for months. She also underwent several operations. It is practically undenied that plaintiff abandoned defendant and the child in July, 1939. He admitted that he left home in 1939 and did not return, and that his wife and Dolores continued to live there. It is clear that for some years, prior to the abandonment, plaintiff was anxious to get rid of his wife and that he preferred to have her secure a divorce. Defendant testified that plaintiff told her in 1938 that he did not want her anymore, that he wanted a divorce and for her to go down and talk with his attorney; that she went to his attorney’s office and the attorney said to her, ‘1 Mrs. Crook, you can’t make a man live with you and stay with you unless he wants to, ’ ’ and he suggested that she agree to get a divorce, that she should go away for a year. Plaintiff made no attempt to refute this important evidence. Defendant further testified that a few days thereafter plaintiff told her, “You might as well leave: You might as well give me a divorce because there is going to be hell here right now in the house,” to which she replied, “I am not moving, I am not leaving home”; that on another occasion he said to her, “Whenever, down home where I lived, whenever a mule gives out, they always replace him with a new mule ’ ’; that at the time he made this statement she was just recovering from an illness. Dr. Dove, the family physician, attended defendant in all of her sicknesses and operations. The contention of defendant’s counsel that the evidence conclusively shows that plaintiff had “systematically schemed to cast off his wife against whom he had no decent grievances,” is fully justified by the record.

In the trial before Judge Lews plaintiff based his right to a divorce upon the theory of fact that two police officers and several other parties found defendant in the act of adultery with one Jones on the night of May 28-29, 1944. Defendant and Jones testified that -the said-evidence of .the police -officers and other parties was false, and they denied that they ever committed adultery. Defendant testified that on the evening of May 28, 1944, she became very ill from something that she had eaten, and that she was treated at her home that evening by Mrs. Valentine, a registered nurse, employed at the Cook County Hospital. Mrs. Valentine testified that she came to defendant’s home between 9 and 9:30 of the evening of May 28 and found defendant trying to vomit; that she gave defendant bicarbonate of soda, which treatment did not relieve her; that she put defendant to bed and gave her an enema, which produced no result; that she called Dr. Dove on the telephone and informed her of defendant’s condition; that she, the witness, was compelled to leave the apartment at 10:20 p. m. in order to get to her work at the County Hospital at 11 o’clock but that before leaving she requested Mr. Jones to remain in the apartment until Mrs. Callie Broxton arrived to take care of defendant, and that he promised to remain. Dr. Dove testified that about 9 or 10 o’clock the night of May 28 she received a telephone call informing her that Mrs. Crook was ill and that between 11 and 12 o’clock she got another telephone call to come, as defendant was very ill; that she dressed and proceeded in her car to the home of defendant; that she found her very ill and in bed; that her face was pallid and there was “distension in the hypogastric region, difficult breathing. I gave her a dose, hypodermically, of one-twentieth of a gram of apomorphia. That is a type of morphine that evaporates the gastric content of the stomach.” The doctor further testified that on May 27 defendant called at her office, at which time she put in defendant “a vaginal pack, for drainage,” and that she removed this pack from defendant on the evening of May 29 and then put in “an insufflatis of silver picrate powder”; that she also gave defendant something for her nerves; that the packing consisted of “a big rosebud yarn tampoon, it is fluffy when yon put it in. You have got to put it in with a speculum. When it comes out it is a small thing. . .” The doctor further testified that she had been treating defendant for a “super vaginal-hysterectomy” since 1942; that in 1942 she suspected malignancy, but that an operation performed on defendant showed “a uterine fibroid.” A number of other witnesses gave testimony tending to support defendant’s claim that the testimony of the two police officers and others, that she committed adultery with Jones on the night of May 28-29, 1944, was false.

If the chancellor did not believe the testimony offered by plaintiff as to the alleged ■ adultery of defendant with Jones, he would be justified in concluding, after a consideration of all the facts contained in the record, that the charge that defendant committed adultery with Jones was but a second, effort of plaintiff to get rid of his wife through perjury and fraudulent means. Counsel for plaintiff admits, in his brief, that “the evidence was violently conflicting”; that “It was a confusing, baffling case all the way through, ’ ’ and he makes the following significant statement: “It is common knowledge for all veteran lawyers and veteran judges that both wives and husbands (for some peculiar reason) consider that they have a strange license or excuse for fabricating evidence in divorce cases. It is equally common knowledge to all lawyers and judges that the parties to a bitterly contested marital case are generally able to induce their ‘close friends’ to aid and support them in such questionable tactics.” Judge Johs C. Lews, an able and experienced chancellor, tried this cause, and the record shows that he conducted the proceedings fairly and impartially. Plaintiff’s counsel admits that the chancellor “utterly rejected and held as spurious, the entire testimony of the two police officers (as well as the testimony of the two private detectives) about that ‘raid.’ ” Counsel states, in plaintiff’s brief: “So strongly are we convinced of the veracity of these police officers, that we are putting entirely to one side all the other testimony in this case so far as Mrs. Crook’s conduct or misconduct is concerned, and are pinning our faith on the story of these officers. alone.” Plaintiff’s present counsel seems to assume that there is a legal presumption that police officers are more likely to tell the truth in the trial of a cause than other witnesses. There is, of course, no such presumption. When a man becomes a police officer he is either an honest or a dishonest individual, and the mere fact that thereafter he wears a uniform does not change his character. In determining the credibility of a police officer and the weight, if any, that should be attached to his testimony, the same fair tests are applied as are legally applied to the testimony of any other witness. . While counsel for plaintiff complains bitterly of the chancellor because he refused to believe the officers’ testimony, we are satisfied, after studying the evidence of the police officers and considering it in the light of all the other facts and circumstances in the case, that the chancellor was fully warranted in disbelieving the testimony of the officers. The fact that plaintiff was determined to get rid of his wife and that, in the first trial, he had attempted to bring about this result by perjury and fraudulent means, stands out like a mountain peak in the evidence.

Many years ago our Supreme court, in Calvert v. Carpenter, 96 Ill. 63, stated (pp. 67, 68):

“It can scarcely be repeated too often, that the judge and jury who try a case in the court below have vastly superior advantages for the ascertainment of truth and the detection of falsehood over this court sitting as a court of review. All we can do is to follow with the eye the cold words of the witness as transcribed upon the record, knowing at the same time, from actual experience, that more or less of what the witness actually did say is always lost in the process of transcribing. But the main difficulty does not lie here. There is an inherent impossibility of determining with any degree of accuracy what credit is justly due to a witness from merely reading the words spoken by him, even if there were no doubt as to the identity of the words. However artful a corrupt witness may be, there is generally, under the pressure of a skillful cross-examination, something in his manner or bearing on the stand that betrays him, and thereby destroys the force of his testimony. Many of the real tests of truth by which the artful witness is exposed, in the very nature of things can not be transcribed upon the record, and hence they can never be considered by this court. For this reason the rule is firmly established, that where, as in this case, there is an irreconcilable conflict in the testimony, this court will not reverse the judgment of the trial court, where the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the verdict. ’ ’

The findings of the chancellor in the instant case have the same force and effect in a reviewing court as the verdict of a jury. In People v. Hanisch, 361 Ill. 465, 468, the court said: “Whatever may be the rule in other jurisdictions, we firmly adhere to our often-asserted belief that it is the province of the jury, alone, to determine the weight of the evidence and the credibility of witnesses. If it were not so there would be little use for the jury system. The jury, as a fact-finding body, is of such importance that an abridgment of its functions in this regard and an appropriation of them by the judges would mean the forsaking of a valued tradition in our system of jurisprudence. The utmost caution should be exercised not only by the trial courts but by the reviewing courts to uphold the sanctity of the trial by jury. ’ ’ But we are not obliged to rely upon the rules laid down in the Hanisch case in order to sustain the findings of the chancellor in the instant case, because, after a careful review of the record, we find ourselves in full accord with his findings upon the vital questions involved in this proceeding.

Plaintiff contends that the chancellor failed to separate the issues of the divorce complaint from the issues of the separate maintenance proceeding and that while it was proper for the chancellor to hear both actions in one trial, it should have been done in a logical and rational fashion; but that the court “made a sort of legal ‘Irish stew’ out of the two separate law suits before it,” and permitted the two issues to be “thrown together” and “cooked in one pot,” and that the procedure which followed resulted disastrously to the rights of plaintiff. We are satisfied from an inspection of the record that this contention is a mere after thought, and without merit. The counsel who now raises this contention did not take part in the trial of the cause and he has failed to call our attention to any place in the record where plaintiff’s counsel who did take part in the trial made any objection or complaint to the procedure followed by the chancellor. It is conceded that the chancellor had the right “to hear both actions at one trial,” and the record shows that the learned chancellor fully understood that there were two issues to be decided in the proceeding and that plaintiff’s rights were not adversely affected by the fact that the two issues were tried in the one hearing. The argument that defendant (cross-plaintiff) failed to make out a prima facie case in support of her counterclaim hardly merits serious consideration. As we have heretofore stated, the evidence conclusively shows that plaintiff abandoned his wife, child, and the family home in July, 1939, and that he never returned to them or his home; that for a number of years he wanted a divorce and tried to force defendant to commence divorce proceedings against him; that he had his lawyer urge her to commence divorce proceedings; that it was suggested that a settlement of $10,000 would be made if she would secure a divorce or consent to plaintiff’s securing one; that defendant refused her consent to a divorce and stated that she was going to remain in the home. Plaintiff admitted the abandonment, and he made no effort to justify his act. In a coarse, brutal way he told his wife that she was played out and that he wanted a new wife. In Bartlow v. Bartlow, 114 Ill. App. 604, the court said (p. 606): ‘ ‘ Ordinarily, in suits under the statute providing for separate maintenance, the wife leaves the husband, and the burden is cast upon her of showing that she had reasonable ground for leaving him. In this case the husband leaves the wife, and while the burden is still upon her to show that she is living separate and apart from her husband without her fault, yet it is of a negative character. The most that she can be expected to show in the first instance is that she reasonably performed her duty as a wife, and then the burden is cast upon the husband to show that he had reasonable ground to leave her. . . .” (Italics ours.) The record shows that plaintiff’s counsel paid scant, if any, attention to defendant’s counterclaim for separate maintenance as they confidently expected that plaintiff’s charge of adultery against his wife would be sustained by the chancellor, which ruling, if it had been made, would have disposed of defendant’s counterclaim.

Plaintiff contends that “real property rights were improperly included in Mrs. Crook’s separate maintenance decree.” In support of this contention plaintiff states that the chancellor awarded to defendant an apartment in her husband’s home and building and this was an attempt by the chancellor to give the wife “what was in effect certain property rights in the real estate of the husband.” Counsel makes an unfair argument in support of this contention. The record shows that the chancellor held that he had no jurisdiction over plaintiff’s property and that he would make no order in reference to the same. It is true that the original decree entered hy the chancellor on March 9, 1945, contained the following provision: “It Is Further Ordered that the said Irene L. Crook continue to occupy the second apartment, 4638 South Indiana Avenue, Chicago, Illinois, which she now occupies, and that her occupancy is to remain in status quo until the further order of this Court.” That decree also contained a provision that the permanent support and maintenance of defendant was reserved until the further order of the court. Before the second final decree was entered on June 22, 1945, there was an extended hearing before the chancellor upon the question of defendant’s support, attorneys’ fees, etc. The record shows conclusively that at that time the chancellor again stated that he had no jurisdiction over plaintiff’s property and that he would make no order in reference to the same. Counsel for defendant asked the court to enter an order restraining plaintiff from putting' defendant out of the apartment, and the chancellor refused to make such order. In view of the instant contention of plaintiff the following statement made by Mr. Lavery to the chancellor is significant: “It seems to me the Court ought to say whether Mrs. Crook remains in the apartment or not. I don’t think it is fair to leave the situation where Mr. Crook is at the option of Mrs. Crook with respect to that matter. I think the Court ought to say that,” to which statement the court responded: “I have no jurisdiction over this defendant’s [plaintiff’s] property.” It is conceded that the chancellor made no order in the second final decree that affected plaintiff’s property. That decree merely gave Mrs. Crook a cash award of $40 per week and did not pass upon the question as to her right to continue in the apartment. Counsel for defendant insisted that the apartment used by the latter constituted a homestead and that the chancellor had the right to enter an order restraining plaintiff from commencing proceedings to oust her, but the chancellor stated that he had no jurisdiction to enter such an order. The record does show that in the course of a colloquy between the chancellor and the counsel the chancellor stated that he had made an allowance to defendant of $40 per week and he thought that if defendant remained in the apartment plaintiff should be given a credit, upon the allowance, of $67.50 per month. As we read the record this statement of the chancellor seemed to meet with the approval of plaintiff’s counsel. The contention of plaintiff that the decree affected plaintiff’s property rights is without the slightest merit.

Plaintiff contends: “This case must be reversed because of the erroneous rulings of the trial Court as to attorneys’ fees. There was no adequate proof whatever of such fees.” The chancellor allowed defendant, in the second final decree, attorneys’ fees of $4,310. Counsel for defendant justly complains that a considerable part of the evidence and proceedings in connection with the hearing of the verified petition of defendant for the allowance of alimony and solicitors’ fees is not abstracted. The services of the attorneys for defendant were rendered in an unusual proceeding. For five or six years plaintiff had been engaged in a scheme to get rid of his wife by perjury and fraudulent means, and defendant’s counsel protected her rights in an able and courageous manner. The fact that her counsel spent a great many hours in her defense was due to the conduct of plaintiff. In furtherance of his scheme to get rid of his wife plaintiff resorted to illegal means and defendant’s attorneys were compelled to be on the alert constantly to prevent the scheme from succeeding. The chancellor, after hearing the evidence, found that defendant’s counsel had spent in the trials and preparation for the same, and in necessary briefing and reading work, 431 hours, and he allowed compensation for the same at the rate of $10 per hour. He also allowed for expenses incurred by counsel, $191.52, making a total allowance of $4,501.52, from which was deducted $375 theretofore paid to defendant’s counsel. We are satisfied that the chancellor was fully justified in making this allowance.

The decretal judgments of the Superior - court of Cook county from which plaintiff has appealed are affirmed in toto.

Decretal judgments- affirmed in toto.

Sullivan, P. J., and Friend, J., concur.