71 N.E.2d 54 | Ill. | 1947
By this appeal, appellant seeks to reverse the findings and judgment of the Appellate Court which affirmed an order of the city court of West Frankfort, Illinois. The decree of the city court granted leave to appellee to supply the files with an affidavit, and denied appellant's motion to vacate a decree of divorce entered by that court.
The appellee filed his complaint for divorce on November 10, 1942. Service was had by publication in a newspaper published in Benton, Illinois, situated in the same county in which West Frankfort is located, and on December 27, 1942, a decree was entered by the city court of West Frankfort on the default of appellant. At the hearing, the appellee testified that he had been a resident of the State of Illinois for about fourteen months and that he had lived in the city of West Frankfort a year "since he came back." He further testified that he was married to the appellant in June, 1920, and that she had left him in June, 1934, and that they had not lived together since that time. The decree found that the appellee for more than one year preceding "this date," had been continuously a resident of West Frankfort and the State of Illinois. On June 29, 1945, the appellant filed a verified *103 motion to vacate and set aside the decree on the ground that the city court of West Frankfort at the time of entering the decree did not have jurisdiction of the person of the plaintiff, jurisdiction of the person of the defendant or jurisdiction of the subject matter of the cause.
The contentions as to jurisdiction of the persons of both the appellant and the appellee were discussed at length in the opinion of the Appellate Court,
The appellant contends that the city court of West Frankfort lacked jurisdiction of the subject matter because the desertion did not occur within the city of West Frankfort or even in the State of Illinois, in that the original act of separation took place in Florida and the appellant had never set foot within the State of Illinois. She insists that to enable appellee to obtain a divorce in the city court of West Frankford the original act of leaving must have taken place within the corporate limits of that city and that the appellee must have resided in the city of West Frankfort for a full year subsequent to such act of desertion. In support of this contention, the appellant cites Werner v.Illinois Central Railroad Co.
In Werner v. Illinois Central Railroad Co. this court held that the city court of East St. Louis was without jurisdiction to try a case where the acts from which the cause of action arose occurred outside the territorial limits of the city of East St. Louis. In the case of McFarlin v. McFarlin,
In Illinois, in order to secure a decree of divorce for desertion, there must be the original act or beginning of desertion without the fault of the complaining party. Also, to comprise desertion in the State of Illinois the act of living separate and apart must extend and continue for one or more years. (Ill. Rev. Stat. 1945, chap. 40, par. 1.) Section 3 of the same act requires that in order to sue on the ground of desertion the plaintiff must maintain a residence in this State for more than one year during the period the desertion continues unless the offense or injury complained of was committed within this State. Appellant contends that all of these jurisdictional facts must exist while the appellee lived within the territorial limits of the city of West Frankfort before any cause of action arose. This contention is not well founded. To hold that the original act of leaving must occur in this State would deprive bona fide
residents of this State from having their *105
causes of action heard by the courts in their own State. In holding that the original act of separation need not have occurred within the confines of the State of Illinois we are not without authority. In Ashbaugh v. Ashbaugh,
We believe the facts disclosed by the record clearly comply with the statutes of the State of Illinois for acquiring jurisdiction in a suit for divorce based upon desertion. The judgment of the Appellate Court, affirming the decree of divorce and the orders of the city court of West Frankfort, is affirmed.
Judgment affirmed.