4. Divorce 245(1)—Final decree of divorce without personal service held to preclude subsequent allowance of alimony.

Acceptance of final divorce, where court had no power to award alimony or solicitor's fees because of absence of personal service, held to preclude wife from securing such award on supplemental proceeding, as Divorce Act, § 18, permitting alterations in allowance of alimony, does not apply where no allowance was made in first instance.

5. Divorce 323-Father compelled to support child, though not personally served in di

vorce action.

Father could be compelled, on citation to show cause, to support minor child, custody of which was awarded mother in divorce action, notwithstanding he was not personally served in that action, it being duty of father to support minor child irrespective of decree of divorce.

Appeal from Third Branch, Appellate Court, First District, on Error to Superior Court, Cook County; Walter P. Steffen, Judge.

ed, to enter an order requiring him to pay alimony or solicitor's fees. The answer denies that the court has jurisdiction to enter a further order in the cause and asks that the petition be dismissed. There was a hearing on the petition and an order entered finding that the court had jurisdiction to consider the petition, and that appellee is an able-bodied man, is regularly employed, is earning $25 a week, is residing with his parents, is able to support appellant and their child, and that appellant has no means or property of her own. Appellee was ordered to pay to appellant the sum of $12.50 a week as alimony for her and their child until the further order of the court and to pay to appellant $75 for solicitor's fees. On appeal to the Appellate Court the decree was reversed. A certificate of importance was granted and this further appeal is prosecuted.

[1] The questions presented by this appeal are novel and a decision of them is bound to be far-reaching. Notwithstanding this, we have been compelled to make an independent search of the authorities and have not been aided by properly prepared briefs of counsel. Appellant has filed a brief citing an early case decided by this court where the only question involved was the modification of a decree in personam entered at a former term of court. The brief has not furnished us Charles E. Erbstein, of Chicago, for ap dictions which deal with the questions before with any of the authorities from other juris

Suit by Rosine Holmes Kelley against Clark Mansur Kelley for divorce. Decree for plaintiff. Subsequent decree, ordering defendant to pay alimony for support of herself and child, and solicitor's fees, was reversed by the Appellate Court, and plaintiff appeals. Reversed and remanded.

pellant.

us.

Appellee has filed no brief at all. Rule THOMPSON, J. Appellant, Rosine Holmes 15 provides that each party shall file a printKelley, filed her bill in the superior court ed brief in the cause. The brief of appellant of Cook county asking that the marriage should contain the points relied upon for a between her and Clark Mansur Kelley, ap- reversal and these points should be supportpellee, be dissolved and that she be awarded by authorities. If the question has been ed the care and custody of their child, Bar- decided by this court it is not necessary to bara Anne Kelley, 8 months old. Appellee could not be found in the state and service was had by publication. May 16, 1922, a decree of divorce a vinculo matrimonii was granted and the care and custody of the child was awarded to appellant. Thereafter appellee returned to Cook county, and December 4, 1922, appellant filed a petition in the same cause alleging that she filed her bill charging appellee with extreme and repeated cruelty and praying for divorce and for alimony and solicitor's fees, and that a default decree was subsequently entered. She further alleged that appellee was then within the jurisdiction of the superior court of Cook county, and asked that he be summoned to show cause why he should not pay to appellant money for her maintenance and for the support of their child and for solicitor's fees. Appellee was duly summoned to appear at the next term of court, and January 3, 1923, he filed an answer, admitting that a final decree of divorce was entered May 16, 1922, and alleging that the court was without jurisdiction, at the time the decree was enter

cite authorities from other jurisdictions, but if the question has not been decided by this court it is the duty of counsel for appellant to support his contentions by an authority from each jurisdiction that has decided it. Counsel for appellee took this case to the Appellate Court, and it was his duty to follow the case to this court and present the authorities relied upon to sustain his position. If the questions involved in a case are of sufficient importance to justify asking this court to decide them, they are worthy of the careful consideration of counsel presenting them. If the case is not properly presented and the court is not given the benefit of precedents, there is danger of a decision being rendered that will not be in harmony with the weight of authority. It is the duty of attorneys practicing in this court to present to the court the authorities supporting their views, and to assist the court in reaching a correct conclusion.

The Mosaic law recognized the right of a man to divorce his wife, and under the civil law either party might renounce the mar

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

(147 N.E.)

riage union at pleasure. The right of a court
to grant an absolute divorce is derived en-
tirely from legislative grånt. Prior to the
English Divorce Act of 1857 the right of the

ecclesiastical courts to grant a divorce a
mensa et thoro was recognized, but these
courts did not have the power to grant a di-
vorce a vinculo matrimonii. They sometimes
entered decrees of annulment for causes
which rendered the marriage void ab initio,
but the only absolute divorces granted in
England were by special acts of Parliament.
[2] While in this country the matter of
granting a divorce involves the judicial pro-
cess, it has always been recognized that the
courts have only such power with respect to
granting a divorce absolutely severing and
canceling the marital bonds as the Legisla-
ture sees fit to confer upon them. Where the
divorce amounts to nothing more than a sepa-
rate maintenance, which is the kind of di-
vorce that was granted by the ecclesiastical
courts of England, the status of marriage
continues, and the power to grant alimony
with such a divorce carries with it the pow-
er to modify or alter the allowance of ali-
mony to meet new conditions. This is not
true, however, with respect to a divorce
which destroys the marriage relation.
that case the obligation to support the wife
ceases with the severance of the marriage
relation except in so far as the decree of di-
vorce by authority of the statute provides
for alimony. Unless the statute granting the
power to award alimony to the wife author-
izes the court to alter the decree to meet new
conditions, the decree is like a final decree
in any other case and cannot be changed.
Ruge v. Ruge, 97 Wash, 51, 165 P. 1063, L. R.

A. 1917F, 721.

In

[3, 4] In the case at bar appellant took her decree of divorce without personal service on appellee, and under those circumstances the chancellor was without power to award alimony. This was a voluntary act on her

part, and by causing to be entered a final de

cree severing the marriage relation she placed it beyond the power of the courts to award alimony. In so far as it is authorized by statute, alimony may be allowed to the wife as a part of a decree for divorce or for separate maintenance, but alimony cannot be allowed on a bill filed for that purpose alone. Trotter v. Trotter, 77 Ill. 510. The summons having been served by publication, the court was powerless to grant any relief in personam, and, no jurisdiction of the subjectmatter having been reserved in the decree, the court's resumption thereof, if the right can exist under any circumstances after the close of the term at which the decree was rendered, must be found in our statute on divorce. Section 18 of the act (Smith-Hurd Rev. St. 1923, c. 40, § 19) provides:

"When a divorce shall be decreed the court may make such order touching the alimony and

maintenance of the wife,
as, from the
circumstances of the parties and the nature of
the case, shall be fit, reasonable and just.
from time to time, make such alterations in the
And the court may, on application,

* * *

allowance of alimony and maintenance, **
as shall appear reasonable and proper."

Before an allowance can be altered there
must have been an allowance made at the
time the decree was entered. There was an
attempt to make an allowance in this case,
but it is conceded that that part of the de-
cree is void. The plaintiff was not obliged to
take her decree under the circumstances, and
having done so she waived her right to ali-
mony and solicitor's fees. There being no
order allowing alimony to appellant when the
decree for divorce was entered, there is no
power now, on this supplemental proceeding,
McFarlane
to make an original allowance.
v. McFarlane, 43 Or. 477, 73 P. 203, 75 P. 139;
Howell v. Howell, 104 Cal. 45, 37 P. 770, 43
Am. St. Rep. 70; Spain v. Spain, 177 Iowa,
249, 158 N. W. 529, L. R. A. 1917D, 319, Ann.
Cas. 1918E, 1225; Moross v. Moross, 129
Mich. 27, 87 N. W. 1035; Bassett v. Bassett,
99 Wis. 344, 74 N. W. 780, 67 Am. St. Rep.
863; Tobin v. Tobin, 29 Ind. App. 382, 64 N.
E. 624; Plaster v. Plaster, 47 Ill. 290.

[5] While a bill, which has for its sole purpose the obtaining of the care and custody of a child, cannot be maintained (Thomas v. Thomas, 250 Ill. 354, 95 N. E. 345, 35 L. R. A. [N. S.] 1158, Ann. Cas. 1912B, 344), the Divorce Act authorizes the court, which has jurisdiction of a suit for divorce, to make orders concerning the care and custody of the child or children of the parties during the pendency of the suit or upon final hearing when a divorce is decreed, and this order respecting the care, custody, and support of the child or children may be altered from Stafford v. Stafford, 299 Ill. 438, 132 N. E. time to time as changed conditions warrant. 452, 20 A. L. R. 827. Since the children of divorced parents are often exposed to the mutual animosities and jealousies of their parents and the happiness of the children and their usefulness as citizens are thereby endangered, it is the established policy of the law of this state to regard such children as wards of the court. The nurture and proper being matters of vital interest to the state as training of the children of divorced parents

well as to the children themselves, the Legislature has provided that the court granting a divorce shall have full and continuing jurisdiction, during the minority of such children, to make from time to time such orders with respect to their care, custody, and support as reason and justice shall require.

While the marriage relation may be dissolved and the marital rights and duties thereby brought to an end, the relation of parent and child cannot be destroyed. The obligation of the father to support his children begins when the child is born and con

tinues during the minority of the child. This
obligation of the father to support his minor
child is not affected by the decree granting
a divorce, nor by a decree granting the care
and custody of his child to his wife or some
other suitable person. Plaster v. Plaster,
supra. His children are of his blood. It is
not their fault that their parents have been
divorced. It is their right to be given care
by those who brought them into the world
until they are old enough to take care of
themselves. We entertain no doubt that the
court that granted a decree in this case
awarding the custody of the child to the
mother had authority, upon the presentation
of a petition for the purpose, to issue a cita-
tion requiring the father to appear and show
cause, if any he had, why he should not be
required to assist in supporting his minor
child. This conclusion finds support in many
well-considered cases from other jurisdic-
tions. McFarlane v. McFarlane, supra; To-
bin v. Tobin, supra; Spain v. Spain, supra;
Marks v. Marks, 22 S. D. 453, 118 N. W.
694; Chambers v. Chambers, 75 Neb. 850, 106
N. W. 993; Renner v. Renner, 127 Wis. 371,
106 N. W. 846; Miles v. Miles, 65 Kan. 676,

70 P. 631.

prejudicial to defendant, where all evidence on both sides referred to evening of that day.

Error to Circuit Court, Madison County; J. F. Gillham, Judge.

Elden Daniels was convicted of rape, and brings error. Affirmed.

Harold J. Bandy, of Granite City, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Jesse R. Brown, State's Atty., of Edwardsville, Merrill F. Wehmhoff, of Decatur, and I. H. Streeper, for the People.

DUNN, J. This writ of error was sued out to review the judgment of the circuit court of Madison county by which the defendant was convicted of the crime of rape. The victim of the crime, who was a married woman about 23 years old, living with her husband and their two children, was the only witness who testified to the facts conHer testimony estabstituting the crime. lished the commission of the crime, and the only question in the case is the identity of the defendant, who was a young man 22 years old, whom she had known previously. She identified him fully, and, if her testimo

The judgment of the Appellate Court and the order of the superior court are reversed, and the cause is remanded to the superiorny was believed, the verdict finding the decourt for further proceedings in harmony with the views herein expressed. Reversed and remanded.

(317 Ill. 80)

PEOPLE v. DANIELS.

(No. 16558.)

(Supreme Court of Illinois. April 24, 1925.) 1. Criminal law 1159(4)-Defendant and his witnesses held not so clearly entitled to belief as to warrant setting aside conviction.

Defendant and his witnesses, testifying as to alibi, held not so clearly entitled to belief as against those of prosecution as to warrant setting aside conviction of rape as not sustained by evidence.

2. Criminal law 693, 696 (2)-Defendant, not objecting to question until after answer, nor moving to exclude latter, held not entitled to complain.

Where question to state's witness as to why she did not like defendant was not objected to until after she answered, "Because he insulted me," there was no ruling by court nor motion to exclude answer, and objection to question as to how he insulted her was sustained, there was nothing of which defendant could complain. 3. Criminal law 1172(2)-Instruction that commission of crime on day charged need not be proved held unnecessary, but not prejudi

cial to defendant.

In rape prosecution, instruction that commission of crime on day specified in indictment need not be proved held unnecessary, but not

fendant guilty was justified by the evidence.

The defense was an alibi. The crime occurred on the night of May 15, 1923, in the village of Madison, at about 8 o'clock. The defendant testified that he lived with his wife, mother, and father, and in the month of May, 1923, was working for the American Refrigerator Transit Company in St. Louis, doing painting and stenciling. On May 15th he worked stenciling cars, and quit work about 4:30, leaving the plant with Wilbur They went to the Endicott, the foreman. soft drink parlor and restaurant at 2401 South Second street kept by Frank Pigot, and remained there until after 7 o'clock. They then went to the soft drink parlor and restaurant of Endicott's cousin, at 3900 North Broadway. They got there about 8 o'clock and did not stay long. The defendant caught a car at the Broadway station of the McKinley car line, got off at Fifth and G streets in Madison, and went straight home. His mother and father were there when he arrived, which was 10 minutes to 9. He did not see the complaining witness, and was not in a place where she was that evening.

The defendant's mother testified that she lived in Madison, at 2013 Beckwith avenue; that she remembered Elden's arrest, which occurred at her home about 6 o'clock when he came from work on May 16th; that he got home the evening before at 10 minutes aftIt was on the 15th. She did not see er 9. him that evening, as she was in bed. He

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

(147 N.E.)

arrived home at 10 minutes after 9 and she to 9. He was corroborated by Endicott as had just got in bed. to his being in St. Louis at 8 o'clock and Wilbur Endicott testified that he worked by his mother as to his time of arriving at for the American Refrigerator Transit Com-home. Pigot corroborates the testimony of pany, and on May 15, 1923, quit work at 4:30. Endicott and the defendant as to being at The defendant and Endicott stopped at Frank Pigot's place, at Second and Barton streets, and stayed there until 15 minutes after 7, and then went to 3900 North Broadway. It took three-quarters of an hour to ride there, and it was right close to 8 o'clock when they got there. They got some sandwiches, drank a little soda and stuff, were there 5 or 10 minutes, and then went to Ninth and Salisbury streets. Endicott went to get the Bellefontaine car and the defendant waited for the McKinley car.

(317 Ill. 73)

MCGOVERN et al. v. BROWN et al. (No. 15786.)

(Supreme Court of Illinois. April 24, 1925.)

I. Covenants 122 Intention to impose building line restriction, for benefit of lot owners, shown.

Where grantor of lots in block included building line restriction in deeds, evidence held to show intention to impose restriction for benefit of other lot owners. 2. Covenants

of development, stated.

Shulman, Shulman & Abrams, of Chicago (Meyer Abrams, of Chicago, of counsel), for defendants in error.

DUNCAN, C. J. Plaintiffs in error, Owen McGovern, Rose Friedrick, John J. Brunen, Nick Palivos, and Thomas A. McClory (herein referred to as complainants), filed their bill in the superior court of Cook county to enjoin Samuel and Mary Brown, defendants in error (herein called defendants), from violating a building line restriction imposed 79(3)—Effect of general plan on the property upon which they were about to erect a building. A temporary injunction was issued, and thereafter defendants filed their answer to the bill. A replication was filed to the answer, and the issues were referred to the master in chancery for proofs and findings. The master recommended that the relief prayed in the bill be decreed and overruled objections. The court heard the cause on exceptions, which were sustained, and dismissed the bill for want of equity. Complainants have filed a

Where land is subdivided into lots and the lots conveyed to separate purchasers subject to conditions of a nature to operate as inducement to purchasers and to give each purchaser benefit of a general plan of building or occupation, so that each shall have attached to his lot a right in the nature of an easement or incorporeal hereditament in lots of the others, a right is thereby acquired by each grantee which he may enforce against any other grantee.

3. Easements 19-Building line creates transcript of the record in this court for a easement of light, air, and vision.

Establishment of building line creates easement of unobstructed light, air, and vision for benefit of public and owners of property included in restricted area. 4. Covenants

84-Purchaser not bound by building restriction, except as he might have notice of it.

Purchaser of lot on which there is building line restriction in favor of other lot owners, because of general plan of building or occupation, will not be bound except in so far as he may have notice, actual or constructive, of such plan.

review by writ of error.

The lots affected by this suit are 24 in number, numbered 25 to 48, inclusive. They are situated between Cicero and Kilpatrick avenues and face south on Jackson boulevard, in Chicago, and are in the south half of block 6 in Hobart's subdivision of the northwest quarter of the northwest quarter of section 14, township 39 north, range 13 east, Cook county, Ill. Lot 25 is west of lot 48 and corners on Cicero avenue and Jackson boulevard, and lot 48 corners on Kilpatrick avenue and Jackson boulevard. The bill alleges the following facts: In

5. Covenants 118-Burden of proving no- 1888 Davenport Galbraith became the owntice of building line restriction is on personer of the south half of block 6, except lots seeking to enforce it.

25 and 26. The plat of Hobart's subdivision was recorded in 1874. Galbraith sold at auction in 1889 the majority of the lots in the block through his agents, E. A. Cummings & Co. His agents, in advertising the auction sales of the lots, used printed maps and literature, and as an inducement to prospective purchasers they printed these words in the advertising literature: "A building line of thirty feet on West Monroe, Adams and Jackson streets." By mesne conveyances complainant McGovern became and is now the owner of lot 35 in the block, complainant Friedrick of lot 33, complainant Brunen of lot 28, complainant Palivos of lot 30, and

Error to Superior Court, Cook County; complainant McClory of lot 29. Defendants Joseph Sabath, Judge.

Suit by Owen McGovern and others against Samuel Brown and another. Decree for defendants, and plaintiffs bring error. Affirmed.

are owners of lots 31 and 32 as joint tenants. All the deeds contain the following provision, or words of the same tenor and effect:

"This deed is granted upon the express condition and stipulation that no building be erectMartin & Martin, of Chicago, for plain- ed upon the said above premises prior to Jantiffs in error. I uary 1, 1898, costing less than $2,000, the nec

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