143 Ill. 550 | Ill. | 1892
delivered the opinion of the Court:
The principal question raised upon this record is, did the circuit court err in dismissing the appellant’s bill. Under the chancery practice in this State, a motion to dismiss a bill may be properly made by the defendant whenever he denies the right of the complainant to file it, as, where a bill of review has been filed without first obtaining leave of the court; or the motion may be based upon the failure of complainant to comply with some order of the court made after the bill has been filed, as, the failure to give bond for costs, etc. The motion may also be made upon the ground that there is no equity apparent upon the face of the bill, or that the court has no j urisdiction, though such is not the generally approved chancery practice, and in such ease the motion is treated as a general demurrer, admitting all the facts well pleaded by the bill. (Vieley v. Thompson, 44 Ill; 9; Hickey v. Stone et al. 60 id. 458; Emerson v. Western Union Railroad Co. 75 id. 176.) A bill will never be dismissed upon such a motion unless it is clear that no amendment can help it. (Thompson v. Adams et al. 30 Ill. 37.) Such is the necessary result of treating the motion as a demurrer to the bill.
In this case, the order of dismissal was not based upon the insufficiency of the allegations of the bill to entitle the complainant to the relief prayed, nor upon the failure of the complainant to obey any order of the court made subsequent to the filing of her bill, but upon the sole ground that the bill had, in the first instance, been placed upon file without leave of court. Appellee’s motion below, and the argument of his counsel here, in support of the correctness of the ruling of the circuit court, proceed upon the theory that the bill of appellant is a bill of review, or a bill in the nature of a bill of review, which could only be filed by leave of court. Wé have carefully examined the bill, and given due consideration to the argument of counsel for appellee, and are unable to agree with their contention.
The foundation of complainant’s claim to the relief prayed is the allegation that at the time the bill for divorce and alimony was filed, and the decree rendered thereon, she was a minor. It is the well settled law of this State that an infant who has been wronged by the decree of a court of chancery can maintain an original bill for relief. Unlike an adult, he may question such a decree without applying for a rehearing or filing a bill for review. Lloyd v. Malone, 23 Ill. 43; Kuchenbeiser v. Beckert, 41 id. 172; Hess v. Voss, 52 id. 472; Gooch v. Green, 102 id. 507; Lloyd v. Kirkwood, 112 id. 329; Haines v. Hewitt, 129 id. 347; Coffin v. Argo, 134 id. 276. This right of the infant may be exercised at any time before he attains his majority, or afterwards within the time in which he could successfully prosecute a writ of error to reverse the erroneous decree. We are clearly of the opinion that the bill before us is a bill of that class, and that the complainant had a right to file it without first obtaining the consent of the court.
In the argument of counsel maintaining that the bill should be treated as a bill of review, stress is placed upon the fact that the minority of the complainant does not appear upon the face of the proceedings attacked; that while the bill for divorce .alleges that the complainant was a minor at the time she joined her husband in the conveyance to his mother, it nowhere appears in that bill, or the proceedings under it, that she was then an infant. We are unable to perceive why that fact should be held to affect her right to file an original bill, if it sufficiently shows that her infancy was taken advantage of or her rights ignored in the proceeding complained of.
While, as already stated, the decree of the circuit court appealed from was based upon the theory that the bill was one of review, and was therefore improperly filed without first obtaining leave of the court, it is insisted that it shows upon its face that it is without equity, and that the decree below should on that ground be affirmed. As we have before shown, to give the motion to dismiss that effect it must be held to admit all the facts well pleaded by the bill.
As the cause must be remanded for further proceedings, which will probably result in a hearing upon the merits of the case, we refrain from expressing any opinion as to the merits of the case made by the bill, farther than to "say that it presents enough on its face to call for an answer.
For the error of the circuit court in dismissing the bill at the costs of the complainant its decree will be reversed, and the cause remanded for further proceedings not inconsistent with 4he views herein expressed.
Decree rgversedt