64 Ill. 75 | Ill. | 1872
delivered the opinion of the Court:
The objection urged to the decree for a divorce, that it is not warranted by the evidence, we can not consider.
The record does not show that the evidence, upon which the decree was based, is preserved. The certificate of the judge does not purport to contain the evidence, but the decree recites that the bill was taken for confessed, and that the court heard evidence to sustain its allegations, and that he was fully satisfied of their truth.
We must, therefore, presume that the court heard oral proof in addition to the report of the master; and it has never been held necessary that this proof should be preserved in the record. It is enough that the court finds as is recited in the decree when the contrary is not shown. Shillinger v. Shillinger, 14 Ill. 147 ; Davis v. Davis, 30 Ill. 180; Hawes v. Hawes, 33 Ill. 286.
We think that the decree determines that the defendant was in court. It says that she, in her proper person, entered her appearance. Previous to its rendition, there is nothing in the record to contradict this finding. It is true, that it appears the defendant, as well as her attorney, indorsed upon the bill before it was filed, according to the dates, an entry of appearance. This can not destroy the solemn finding of the court that she, in her own person, entered her appearance. Upon this record, the conclusion must be that she voluntarily acknowledged the jurisdiction of the court.
After the rendition of the decree, the defendant made a motion to vacate if, and filed an affidavit in support thereof, but did not accompany it with any answer. Upon the hearing of the motion, counter affidavits were also filed.
In the discussion of the motion, it is only necessary to refer to so much of the affidavit of the defendant as states that she did not know of the pendency of the suit until several weeks after the decree. The statements as to her suit against the complainant, and that she was compelled, without a knowledge of their import, to sign some papers, are not relevant to the motion.
The complainant had the right to maintain his suit, with or without her consent, and whether her bill was pending or had been dismissed; and the papers are merely designated as “some papers,” but are not, in any manner, defined, so that we can decide that they had any reference to the pending suit.
Besides the finding in the decree, the counter affidavits show most conclusively that the defendant did enter her appearance ; that she had full information as to the pendency and object of the suit; that no collusion was practiced upon, and no misrepresentation made to, her; that she was present in court before the rendition ■ of the decree, had a conversation with the judge, and said that the proceedings were satisfactory to her; and that a month after the decree had been rendered, she procured a copy of it, received one month’s alimony, and. expressed satisfaction at the result of the litigation.
Upon such facts, if they were proper for consideration, there was certainly no error in the refusal to vacate the decree.
The argument is, however, made, that the motion should have been allowed upon the affidavit of the defendant alone, and that the counter affidavits should have been wholly disregarded.
A bill for a divorce partakes so much of the nature of a proceeding in chancery, that it must be governed, to a great extent, by thb rules in chancery cases.
When a bill has been taken pro confesso, and a decree entered by default, it rests in the sound discretion of the court to relieve the party of the consequences of the default. Wooster et al. v. Woodhull, 1 Johns. Chy. 538.
This court has the right to review the exercise of such discretion in chancery proceedings. In Moore v. Bracken, 27 Ill. 23, it is said that in chancery all matters”, whether of discretion or positive law, are subject to review in a superior court.
When the motion was made, the court below, as was its right and duty, entered a rule upon the complainant to show cause why the rule should not be granted.
For matters not appearing upon the face of the decree, it should never be vacated without notice. In this case, the decree had been rendered, and acted under by the defendant, and the complainant must be regarded as out of court so far as the particular motion was concerned.
Wherefore the necessity of notice, if the party to whom it is given must sit idly by and have his decree vacated without the power of resistance? If such be the rule, the notice is a delusion, and the solemn decrees of the court can easily be overturned.
Courts could not exercise a sound discretion without the right to have all the facts, bearing upon the motion, before them for consideration.
The propriety of counter affidavits is expressly recognized in Truett v. Wainwright, 4 Gilm. 418, and in Reed v. Curry, 35 Ill. 536.
In the last case, the judgment was attacked, principally, because, as alleged, the suit was brought without the authority of the plaintiff; and the court remarked that it Avas a good practice to allow a counter affidavit.
We think it was proper to consider the affidavits-in behalf of both parties, and that the answer should have been prepared and submitted with the motion. Schneider v. Seibert, 50 Ill. 285.
We can perceive no sufficient reason for the vacation of the decree. An affirmance of it will best subserve the ends of justice and close this unfriendly litigation.
The decree of the court below is affirmed.
Decree affirmed.
