2. APPEAL AND ERROR 1022(1) - SCOPE - such fees, either in the trial court or on apFINDINGS OF FACT.

peal. Where findings and conclusions as to facta, [Ed. Note. For other cases, see Divorce, made by a inaster in chancery, are sustained Cent. Dig. 88 647-650; Dec. Dig. 225.] by the qhancellor, and are not manifestly against the weight of the evidence, the decree 12. DIVORCE 286—ALLOWANCE OF COUNshould not be disturbed by the Supreme Court.

SEL FEES-DISCRETION OF COURT. [Ed. Note. For other cases, see Appeal and the wife for alimony pendente

lite and for solici

Whether an allowance should be made to Error, Cent. Dig. 88 4015, 4017, 4018; Dec. tor's fees rests largely in the discretion of the Dig. Om 1022(1).]

court, but an abuse of the discretion is subject 3. DIVORCE 108-DEFENSES-CONDONATION to review. -PLEADING.

[Ed. Note-For other cases, see Divorce, The defense of condonation to charges of Cent, Dig. $$ 769, 770; Dec. Dig. 286; Apcruelty and habitual drunkenness, to be avail. peal and Error, Cent. Dig. & 598.] able, should be pleaded or set up in the answer, and failure to do so warrants the court to re: 13. EQUITY 394-MASTER IN CHANCERYfuse to allow the defense.

PER DIEM. [Ed. Note.-For other cases, see Divorce, master in chancery for reporting case with

Allowance of $35 per day for 842 days to Cent. Dig. $8 349 352; Dec. Dig. 108.]

record of only 453 pages of evidence, is exces4. DIVORCE 109-CONDONATION-BUBDEN sive, because too long a time is charged, and OF PROOF-DEGREE OF PROOF.

because the per diem equals that of the chanThe defense of condonation is affirmative, cellor who was the superior of the master, who and the defendant carries the burden of estab- was entitled only to reasonable compensation, lishing it by a preponderance of the evidence. [Ed. Note.-For other cases, see Equity,

[Ed. Note. For other cases, see Divorce, Cent. Dig. 88 857--859; Dec. Dig. 394.] Cent, Dig. 88 354364; Dec. Dig. 109.]

Appeal from Circuit Court, Cook County; 5. DIVORCE 135 - CONDONATION - EviDENCE.

Charles M. Walker, Judge. Evidence held insufficient to establish de Bill by Amelia Klekamp against Robert fense of condonation,

H. Klekamp. From a decree for complain[Ed. Note.-For other cases, see Divorce, ant, respondent appeals. Reversed in part Cent. Dig. $ 451; Dec. Dig. 135.)

and remanded, with directions. 6. DIVORCE 179—APPEAL-WAIVER OF EBRORS.

J. Marion Miller, of Chicago, for appelFailure to raise, in the trial court, the lant. William B. Moak, of Chicago, for apquestion that the master's report made no finding whether plaintiff was guilty of adultery,

pellee. waives such question,

[Ed. Note.-For other cases, see Divorce, DUNCAN, J. Amelia Klekamp filed her Cent. Dig. & 565; Dec. Dig. 179.]

bill for divorce in the circuit court of Cook 7. DIVORCE 49(2)—CONDONATION OF OF: county March 10, 1914, against Robert H. FENSES.

Klekamp, appellant, alleging that she was The wife's adultery in keeping an assigna- lawfully married to him March 17, 1896. tion house and offering herself therein, is completely condoned by cohabitation for 10 years, She charged him in her bill with extreme when the husband knows of and assists her in and repeated cruelty from a short time after operating the house.

their marriage until the filing of the bill, [Ed. Note. For other_cases, see Divorce, and with habitual drunkenness for the 5 Cent. Dig. 8 172; Dec. Dig. 49(2).]

years last past, and prayed for divorce, ali8. The recriminatory

charge of adultery can mony, and the adjustment of their property not be urged by one who has connived at the rights. Appellant answered the bill, deny. offense.

ing every allegation thereof, except that of [Ed. Note.-For other cases, see Divorce, marriage. On May 16, 1914, the court enCent. Dig. $$ 162-165; Dec. Dig. 45.) tered an order that appellant pay appellee 9. DIVORCE 239 - ALLOWANCE-EVIDENCE $6 per week, beginning May 21, 1914, as tem

Evidence held to sustain chancellor's allowance to wife of large amount of property, porary alimony, and $40 as solicitor's fees, of value but little in excess of what she had in equal payments in 30 and 60 days. On invested personally, in view of respective physi- July 14th following, appellee left the jurisdiccal condition of the parties.

tion of the court on a trip to Europe, and an [Ed. Note.-For other cases, see Divorce, order was entered by the court suspending Cent. Dig. 88 673, 674, 683; Dec. Dig. Om the payment of alimony pendente lite un:il 239.] 10. DIVORCE 243_ALLOWANCE-DESCRIP

her return and appointing the appellant reTION OF PROPERTY.

ceiver to take charge of her property at In allowance of property, on divorce, de- 3328 West Congress street, Chicago, and to scription of property as that known as No. collect the rents for the same. Upon her re

Ave., description is erroneously given in another turn from Europe appellee presented her mopart of the record; the husband admitting the tion for appellant to pay her the alimony and address to be correct.

solicitor's fees withheld by him, and to turn [Ed. Note. For other cases, see Divorce, over to her the key to said premises, togethCent. Dig. $$ 684-686; Dec. Dig. 243.]

er with the rents thereof collected by him. 11. DIVORCE 225-ALLOWANCE OF COUNSEL By agreement said matters, including the FEES.

Where the evidence discloses that the wife amount of solicitor's fees to be paid appelis financially more able to pay her counsel fees lee's solicitor, were referred to a master in than the husband, she should not be allowed chancery to take the evidence and report his

Pam For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

conclusions thereon, including the questions at issue on the pleadings. While the evidence was being taken, appellee, by leave of court, amended her bill by adding the further allegation that While she had lived with him in the same house up to the filing of her bill, yet she had not cohabited with him for the last four years of that time. Appellant denied that allegation in his amended answer, and averred that they had lived and cohabited together as man and wife at all times during their marriage and until 3 or 4 days after the beginning of this suit, and also charged her with adultery during their marriage. The master in chancery found him guilty of both charges in the bill, and recommended that appellee be granted a divorce, and that the said three-flat building at 3328 West Congress street be decreed to be her property free of any claim of appellant, as receiver or otherwise, that appellant convey to her the two-flat building at 506 South Homan avenue, and that he pay to her $218 accrued alimony pendente lite and all costs of suit. He also found that if Said two flat buildings are decreed to be hers free from all claims of appellant and said sum of $218 paid her she will be able to support herself and pay her own solicitor's fees, and he recommended that the defendant be not required to pay any further alimony or solicitor's fees, than as above mentioned, except such as may be deemed to be reasonable solicitor's fees for appellee's counsel in case of appeal to a higher court. Objections were filed to the master's report by appellant, and, being overruled, were Ordered by the chancellor to stand as exceptions, and the court decreed that the said two lots and buildings be decreed to be appellee's property, and that appellant convey to her said property known as 506 South Homan avenue and pay to her said sum of money as alimony pendente lite and costs, including the sum of $447.50 as master's fees, and that he shall pay such further sum as the court shall deem proper if he shall remove this cause to a higher court for review. [1, 2] It is argued by appellant as a ground for the reversal of the decree that the findings of the master and the decree of the circuit court are contrary to both the law and the evidence in the case. Upon the charge of cruelty the appellee testified, in Substance, that about 18 months after their marriage appellant struck her “right and left in the face,” and that about a month later he struck and felled her to the floor and bursted the drum of her ear; that about 5 months after that, at 99 West Harrison street, he broke a dining room chair on her back, and that in 1907, at their home, he got angry with her about the Supper she had prepared and grabbed her and threw her over the banisters into the yard and injured her back and stomach so that she was obliged to go to the hospital for treatment. She also enumerated various other times in which she claimed he struck and kicked and beat her, the last

time being shortly before she filed her bill, and she testified that at one of those times he struck her with a 2x4 piece of timber, and that only a few of those occurrences were witnessed by any other person. Appellant denied in toto every specific act of beating or striking appellee testified to by her, except one act which took place in the presence of Agnes Lammerer, an associate and intimate friend of appellee, and he testified that on that occasion he merely put his hand or fist to her mouth and told her to shut her mouth, because she was using such Wile language. Mrs. Lammerer corroborates appellee, and testified that at a large gathering of people at witness' house he “licked her,” striking her over the head with his hand, and that she did not know why he did it; that at another time she saw him strike her in the face with his hand; and that at still another time appellee came to her bleeding and having the appearance of having been beaten, and on inquiry appellee told her appellant had “licked her in the Saloon at 21 Halsted Street.” Appellee was also corroborated to some extent by Elizabeth Heinnamann, who testified that she had heard appellant apply vile epithets to appellee, and that he told her he had beaten appellee and “had thrown her down the porch.” Carrie Regan heard appellant and appellee quarreling, but could not understand their words, and Olga McKenna testified that she was at their house once when they quarreled and he got a knife out of a kitchen drawer and told her he would cut her throat. The proof clearly shows that repeated and numerous acts of Cruelty were committed against appellee as charged in her bill, and, while the evidence is very conflicting on the question of habitual drunkenness, the evidence also sustains the court's findings on that issue. Appellee was shown to have made some statements as to her physical condition and as to Whether or not her former husband beat or struck her that were contradicted Squarely by her evidence in her former divorce Suit, but appellant is also squarely contradicted by other witnesses on matters material to the issues in the case. The findings and conclusions of the master upon those questions having been confirmed by the chancellor, and it not appearing in the record that such conclusions are manifestly against the weight of the evidence, the decree should not be disturbed by this court. Champion v. McCarthy, 228 Ill. 87, 81 N. E. 808, 11 L. R. A. (N. S.) 1052, 10 Ann. Cas. 517; Day v. Wright, 233 Ill. 218, 84 N. E. 226. [3-5] It is also urged that the acts of cruelty and habitual drunkenness, if committed, were condoned by the appellee. The appellant in his answer merely denied the charges of cruelty and habitual drunkenness without pleading condonation. Such a defense, to be made available to appellant, should have been pleaded or set up in his answer. 7 Ency. of Pl. & Pr. 91. Appellant testified that he lived with appellee, slept in the same bed, and cohabited with her up to and for 3 or 4 days after her bill for divorce was filed. Appellee positively contradicted his evidence in that regard, and testified that she had not lived and cohabited with him after the filing of her bill, and had not cohabited with him for the last 3 or 4 years prior to the beginning of this suit. That is all the evidence bearing on that question. While it was in the power and discretion of the court to dismiss appellee's bill if it appeared that she had cohabited with him after her bill Was filed, without regard to the question whether or not such defense was properly pleaded by appellant, yet the court would have been warranted in not allowing appellant to make such defense without having pleaded or averred it in his answer. But, in any event, such a defense is an affirmative One, and the burden of proof was on appellant to establish it by a preponderance of the evidence, and for the reasons above given this court cannot say that the finding of the chancellor is against the manifest weight of the evidence, and we are, in fact, entirely satisfied that appellant failed to establish that defense by the greater weight of the evidence. [6] It is next urged that the decree of the court should not be sustained because the evidence shows that appellee was guilty of adultery. The master's report was silent on that question, and no objection was filed to his omission to make a finding on that issue of fact. Had it been called to the attention of the court by proper objections and exceptions the omission could easily have been cured by a re-reference to the master for a specific finding on that issue. Failing to raise the question in the trial court, appellant must be deemed to have Waived it in this court. Barney v. Commissioners of Lincoln Park, 203 Ill. 397, 67 N. E. 801. [7, 8] But if all the facts bearing on that question had been reported by the master and a finding thereon made by him, appellant could not avail himself of such a defense, because all acts of adultery were completely condoned by him and were connived at by him when committed, as clearly shown by the evidence. The evidence shows that appellee was keeping an assignation house when appellant married her, and that he knew it, and that by his own consent she was to, and did, continue in that business until they could accumulate thereby enough money to keep them through their advanced years, and that she did so continue it for about 5 years, and ceased to do so thereafter. The Witness Dora Freeman, who is a Confessed prostitute, testified that during that 5 years, or a portion thereof, she was an inmate of such assignation house, and that appellant brought or sent men to her for the purpose of prostitution and collected money from her received by her in that business, and she also testified that during that time

appellee had gone to bed with other men “right before Mr. Klekamp.” If she is worthy of belief at all her whole story should be considered. Her testimony is all the evidence of adultery on appellee's part. Appellant denied knowledge thereof or of the fact that appellee kept a house of assignation, but it is clearly proved that she did keep such a house, and that he found her there just 10 days before he married her. If guilty of the charge the offense was completely condoned by his living and cohabiting with her for 10 years thereafter with knowledge of the facts, and he cannot avail himSelf of Such act either as a cause for divorce or of recrimination. Davis v. Davis, 134 Ga. 804, 68 S. E. 594, 30 L. R. A. (N. S.) 73, 20 Ann. Cas. 20; Duberstein v. Duberstein, 171 Ill. 133, 49 N. E. 316. It is also the rule that the recriminatory charge of adultery cannot be urged by one who has connived at the Offense. [9] Appellant further complains that the decree is erroneous in granting to appellee the large amount of property and money aforesaid. The master in chancery found, in substance, that appellee at the time of the marriage possessed notes and mortgages and a bank account of the aggregate value of $8,000, and that the store and assignation house that she was running yielded her a net profit of $100 per month or more; that she bought the lot known as 3328 West Congress street for $1,150 and furnished the money that built the three-flat building thereon—more than $6,000—and that the title has remained and is now in her; that the lot on Homan avenue was bought for $1,000 with her money and the title taken in her name, and that the two-flat building built thereon was built almost entirely with her money, and that in 1907, while she was in a hospital and her Tife despaired of, at appellant's persuasion she deeded him that property under his promise to not record the deed and to reconvey it to her if she recovered from her threatened malady; that he failed to keep his promise and had the deed recorded in 1909 and has since collected the rents thereof and spent or kept them for his own use, and that all he contributed to those buildings was his superintendence and work as a carpenter and builder. The evidence further shows that while she was in the hospital he obtained possession of a $1,600 mortgage belonging to her and $300 of money in the bank, and after converting the mortgage into money bought a lot on Monroe street and with said moneys belonging to her built a two-flat building thereon, which he still owns in his own name, Subject to a mortgage of $3,000, and On Which he collects, and has at all times collected, a rent of $50 per month and has retained the same for his own use. The evidence further shows that she let him have Several amounts of her money at various times, amounting to $2,000 or more, to go into failures and in which he lost all his investments except $350. From his evidence he had about $1,200 or $1,500 when he married appellee and had about the same amount of money when this suit was begun, and appellee still had about $1,500 of other money when the master made his report. We have reviewed all the evidence in the record on the question of their property rights, and while it is in hopeless conflict it entirely supports the master's findings and the court's decree in that regard, and we think the decree should be sustained, as appellee received very little, if any, more in value thereby than her investments in the property and her moneys used and spent by appellant. The evidence also shows that she is now severely afflicted with kidney disorders, and is almost, if not entirely, incapacitated for further accumulations of money or property, and that he while afflicted with a bad hernia or rupture, is nevertheless an excellent carpenter and wood workman, and still capable of earning good wages at that trade. [10] The Homan avenue property was sufficiently described as “the property known as No. 506 Homan avenue,” which appellant gave as its proper number, and it is sufficiently identified by that description even if the other description given it in the record was erroneous, as claimed by him. [11] The evidence does show, however, that the appellee has much more money and property by virtue of the decree of the court than has appellant, and that she is amply able, and much more able, to pay attorney's fees than is appellant. For that reason we think the court properly decreed that she should pay her solicitor's fees in the first instance, and that it erred in its determination to have taxed against him solicitor's fees for her counsel in case this cause should be reviewed by a higher court. In view of the very liberal allowance already made appellee, and considering the further fact that appellant is now left heavily in debt and that the expenses of this lawsuit will about, if not entirely, exhaust all his money now on hand, we think appellee is more able to pay her attorney's fees than ne, and that she should be decreed SO to do. [12] Whether or not an allowance should be made to a wife for alimony pendente lite and for solicitor's fees rests largely in the discretion of the court, it is true, but an abuse of such discretion is subject to review. The court may require the husband to pay the wife such sums of money as may enable her to maintain or defend her suit, and she is entitled to alimony during the pendency of the suit “when it is just and equitable.” Hurd's Stat. 1915–16, c. 40, § 15. She should not be allowed Solicitor's fees When she is amply able to pay them herself and much more able financially to do so than her hus

the saloon business, which ventures were \band. Harding v. Harding, 144 Ill. 588, 32

N. E. 206, 21 L. R. A. 310.

[13] The court also erred in allowing $35 per day to the master in chancery for 8% days for reporting his conclusions of law and fact, itemized as time spent in hearing oral arguments, objections to report, etc. There are only 453 pages of evidence in the record, for the taking and certifying of which the law allows 15 cents per hundred words, and for which is taxed in this case a fee of $150, and which is apparently about the correct Sum. It is very apparent that it could not possibly require 8% days to hear arguments and to report the conclusions of law and fact in this case if a full day's work were performed each day. It is also unreasonable to allow $35 per day for that service, which is about as much, or more, than the judge who tried the case receives for each day he is actually engaged in the duties of his office, and as a matter of common knowledge it is more than twice as much as was ever paid in Chicago for judges from other jurisdictions While employed in the courts of Cook county. A master in chancery is entitled to only such fees as are specified in the statute, and in Cook county for reporting conclusions of law and fact he is entitled to such compensation as the court may deem just. The master's position and responsibility are inferior to those of the chancellor, and his per diem compensation should not, in any event, be equal to or exceed the compensation of the chancellor when reduced to a per diem basis, Fitchburg Steam Engine Co. v. Potter, 211 Ill. 138, 71 N. E. 933. The master stated, as part of his report and as a basis for fixing his fees, that the necessary expense for maintaining his office was at the rate of $15 per day for each working day. Such fact should not be considered in arriving at a proper charge for such work.

The decree of the circuit court is affirmed, except as to the allowance of the master's fees in the sum of $447.50, and as to said fees it is reversed and the cause remanded, With directions to allow the said master for his said fees not to exceed the sum of $250–$150 for taking and certifying the evidence, and $100 for reporting conclusions of law and facts, etc.—and to not allow appellee's Counsel solicitor's fees to be paid by appellant.

Reversed in part and remanded, with directions.

(275 Ill. 217)

PEOPLE ex rel. SIEVERT et al. v. PELTIER et al. (No. 10362.)

(Supreme Court of Illinois. Oct. 24, 1916.)

1. STATUTEs 3-96(1)—SPECIAL LAws—CREATION OF SCHOOLS-ELECTION. Act April 24, 1915 (Laws 1915, p. 630), being an act to legalize elections held since July 1, 1911, by virtue of Act June 5, 1911 (Laws 1911, p. 505), authorizing the organization of high school districts, which declares that, whenever

(3-3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

any election has been held at which the votes of that on May 23, 1914, an election was held women may have been the deciding factor, such to determine whether certain territory in election shall be held to be legal, is not invalid as applying only to elections which were carried Iroquois county should be organized into a by women's votes for the organization of school township high school district, and that at districts; the act being general and applying said election 75 male voters and 46 women to all elections where votes of women may have voted in favor of the proposition and 79 male been the deciding factor.

[Ed. Note.-For other cases, see Statutes, voters and 30 women voted against the propCent. Dig. 8 107; Dec. Dig. Om96(1).]

osition; that in case women were entitled 2. CONSTITUTIONAL LAW 52-SCHOOLS AND to vote at said election the proposition was

SCHOOL DISTRICTS 22-PUBLIC SCHOOLS carried by 12 votes, in which event said high -ORGANIZATION OF DISTRICTS-VALIDATION school district has been established accordOF ELECTIONS.

The act is not invalid as an encroachment on ing to law, but in case women were not enthe province of the judiciary, though it provid- titled to vote at said election then the propoed for abatement of suits involving the organiza- sition was lost by 4 votes and said district tion of districts where the election was validat: has not been legally organized. Based upon ed; the act merely carrying out the intention of the Legislature to validate districts organized at this stipulation of facts, the court on April an election where the votes of women were the 26, 1915, rendered a judgment of ouster deciding factor, by abating suits.

against appellees, finding them guilty in man[Ed. Note. For other cases, see Constitutional ner and form as charged in the information. Law, Cent. Dig. $ 50; Dec. Dig. Om52; Schools and School Districts,' Cent. Dig: 8 41; Dec. Dig. From that judgment appellees prayed an ap22.]

peal to this court, which was allowed upon 3. Quo WARRANTO Em 63—COSTS – RIGHT TO filing bond and bill of exceptions within 30 IMPOSE.

days. Thereafter, on May 5, 1915, appellees Where it was within the power of the Leg- moved the court to set aside and vacate the islature to validate an election for the organiza- judgment of ouster and order for appeal of tion of a high school district, costs of a quo warranto proceeding brought by relators may be im- April 26, 1915, on the ground that on April posed on them where, after institution of the 24, 1915, an act had been duly passed and approceedings, the election was validated, though proved, entitled "An act to legalize certain at the time they were instituted relators had a good cause of action, for they had no fixed rights elections held since July 1, 1911, under and in the matter.

by virtue of 'An act to authorize the organ[Ed. Note. For other cases, see Quo Warran- ization of high school districts,' approved to, Cent. Dig. 8 74; Dec. Dig. Om63.]

June 5, 1911, and in force July 1, 1911, and Duncan, J., dissenting.

all proceedings taken in pursuance thereAppeal from Circuit Court, Iroquois Coun- of, and to abate certain pending suits." ty; Frank L. Hooper, Judge.

Laws 1915, p. 630. The motion to set aside Information by the People, in the nature of and vacate the judgment of ouster and order quo warranto, on the relation of William for appeal was sustained, the judgment of Sievert and others, against Joseph H. Peltier April 26, 1915, was vacated and set aside, and others. A judgment of ouster and or- and judgment was rendered against the reder for an appeal was set aside on respond-lators for costs. From this judgment the reents' motion, and from a judgment against lators have prosecuted this appeal. relators, they appeal. Affirmed.

[1, 2] No question is raised as to the validi... J. W. Kern, State's Attorney, of Watseka ty of the act of June 5, 1911. Laws 1911, (Pallissard & Benjamin and Kay, Perrigo & p. 505. In contending that the curative act Kay, all of Watseka, of counsel), for appel- of April 24, 1915, is invalid, appellants seem lants. C. G. Hirschi, of Watseka, for ap-tion of the provisions of the act than upon

to rely more strongly upon their construcpellees.

the power of the Legislature to pass a curaCOOKE, J. On March 4, 1915, the state's tive act upon this subject. In the recent case attorney of Iroquois county, in the name of of People v. Militzer, 272 Ill. 387, 112 N. E. the people, and upon the relation of William 57, it was held that the act of 1915 is valid, Sievert and others, by leave of court filed as the General Assembly had the power, an information in the nature of quo war-when the Township High School Act was ranto in the circuit court of said county passed, to have authorized women to vote against appellees, requiring them to show by at such elections. what authority they claimed to exercise the

Appellants contend that the act is invalid office and franchise of president and board because by its terms it is applicable only to of education of a certain pretended town- such elections as were carried for the organship high school district in Iroquois county. ization by women's votes. The terms of the Instead of pleading to the information, ap-act will not bear this construction. The act pellees entered into a stipulation with the is set out in full in People v. Militzer, supra, state's attorney by which it was agreed that and contains the express provision that, the cause should be submitted to the court whenever any election has been held under upon a stipulation of facts without formal the act authorizing the organization of high pleadings.

school districts "at which the votes of woFrom the stipulation of facts it appears | men may have been the deciding factor in

om for other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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