149 N.E. 757 | Ill. | 1925
This appeal is from a decree of the circuit court of Peoria county granting appellee a divorce and awarding her a substantial part of appellant's property.
The bill charges "that on many occasions in the months of January, February, March and April, 1924, he struck, kicked, choked and beat your oratrix; that on or about the first day of May, A.D. 1924, the defendant attacked your oratrix with a knife and attempted to stab her with it; that on or about the 27th day of May, A.D. 1924, defendant herein beat your oratrix and choked her, and did upon many occasions before so attack your oratrix; * * * that the defendant has committed adultery with Mary Doe subsequent to his marriage with complainant." The only evidence supporting the allegations of cruelty is the testimony of appellee, which appears in the abstract as follows: "He was very cruel to me during our married life. He hit me, put a gun on me, and he didn't give me anything to eat, and he didn't buy me no clothes nor anything. I don't know how many times he struck me or abused me, but a great many times. He left marks on me and hurt me. My sister *270 was present and saw him do that. I gave him no provocation to treat me in that way." To support the charge of adultery, appellee and Ella McReynolds testified to circumstances from which the conclusion might be drawn that appellant lived in a state of adultery at 722 North Adams street, Peoria, with Lizzie Wilson. The decree finds that appellant is guilty of both charges.
Before a party is entitled to a decree his allegations and proof must agree. If the allegations in a bill are not established by the proof, or if the proof establishes a state of facts not alleged in the bill, and no amendment of the bill to correspond with the proof is made, the bill must be dismissed. (Tucker v. Powell,
The decree of the circuit court is reversed and the cause is remanded.
Reversed and remanded.