183 Ill. 160 | Ill. | 1899
delivered the opinion of the court:
The principal contention of appellant is, the power of the court to award payment to the wife of an amount to pay the fees of her solicitor, under section 15 of chapter 40 of the Revised Statutes, entitled “Divorce,” is restricted by the express terms of the statute to “cases of divorce,” and that a bill to review a decree for divorce is not a case of divorce, but an original proceeding in equity.
Mr. Story, in.his work on Equity Pleadings, (sec. 16,) defines original bills as those “which relate to some matter not before litigated in the court by the same persons, standing in the same interests;” and as bills not original, those “which relate, to some matter already litigated in the court by the .same persons, and which are either an addition to or a continuance of an original bill, or both,” and proceeding further says: “There is another class of bills, which is of a mixed nature and sometimes partakes of the character of both of the others. Thus, for example, bills brought for the purpose of cross-litigation, or of controverting or suspending or reversing some decree or order of the court, or of obtaining the benefit of a former decree or of carrying it into execution, are considered as strictly a continuance of the former bill but in the nature of original bills; and if these bills require new facts to be stated or new parties to be brought into court they are so far strictly of the nature of supplemental bills. For all the objects of the present work this last class may be treated as included in that of bills not original.” And the same author (sec. 20) classifies bills not original into two classes, the second class being those for the purposes of cross-litigation or of controverting or suspending or reversing some decree or order of the court, and in this latter class, in section 21, places a bill of review and also other bills which partake of the nature of a bill of review. Pursuing the subject further, the same author, in section 326 of the same work, says: “Bills not original, as we have seen, pre-suppose a suit to have been already commenced and litigated between the same parties in regard to the same subject matter, and they are properly of two classes: (1) Such as are an addition to or a continuance or a dependency of the original bill; or (2) such as are brought for the purpose of cross-litigation, or of controverting or suspending- or reversing some decree or order of the court or of carrying it into execution,” and in the second class includes a bill of review or bill in the nature of a bill of review. Other law writers and courts class bills of review as bills in the nature of original bills.
The end to be subserved by a bill of review which is grounded on newly discovered facts is not distinguishable from that designed to be accomplished by a petition for rehearing in chancery. A petition for rehearing on the ground of newly discovered evidence is to be invoked prior to the enrollment of the decree, or, under our rule, to the adjournment of the court for the term, and a bill of review for the same ground and the same relief is to be availed of after the rendition of final decree and the adjournment for the term. The purpose, scope and result of the two methods of opening a decree to obtain the benefit of newly discovered testimony are the same, the only distinction being that a petition for a rehearing is to be employed if the relief is asked during the continuance of the term at which the decree was pronounced, and a bill of review is the proper pleading if the term has closed. A petition for rehearing, when properly entertained, is but a part or continuation of the original suit, and a bill for review for newly discovered facts, if entertained, is not different in its nature or effect. A bill of review for error of law invokes the exercise of an appellate function and is in the nature of a writ of error. A writ of error is a new suit, yet in Iago v. Iago, 168 Ill. 339, we held a writ of error brought to reverse a decree of divorce should, under the circumstances of the case, be regarded as but the continuation of the defense to the bill for divorce. The statute empowers the court to require the husband to pay the wife, or into court for her, such sums of money as may be necessary to defend in all “cases of divorce,” — not only while the case is pending in the trial court, but during the pendency thereof in a court of review. The real nature of a bill, as disclosed by its allegations and object, is the more reliable guide as to the case made by it than any merely technical rule of classification of such pleadings. The bill of review in this case involves the determination of the marriage relation by decree of divorce, and, whether technically classified as a bill not an original bill or a bill in the nature of an original bill, its connection with and effect upon the continuation of the marriage relation between the parties is so unmistakable that it must be regarded as a “case of divorce,” within the meaning of those words as employed in our statute.
Whether a bill of review may be entertained to reverse or set aside a decree of divorce does not arise on this record.
The statute has created an exception in cases of divorce to the general rule that the consummation of an appeal deprives the court wherein the decree appealed from was rendered, of power or jurisdiction to enter further orders or decrees in the case. - In such cases the statute in direct terms authorizes the court, after an appeal has been perfected, to grant and enforce an order requiring the husband to pay the wife a reasonable sum of money to enable her to defend her cause in the courts of review. Jenkins v. Jenkins, 91 Ill. 167.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
