79 Ill. App. 590 | Ill. App. Ct. | 1899
after making the foregoing statement, delivered the opinion of the court.
There are assigned on the record in this case by appellant one hundred and fourteen errors and thirty-four cross-errors by appellee. The needless repetitions, over and over again, by appellant’s counsel, in his briefs and arguments, of his points and of the evidence which he claims sustains them, have caused us a great amount of unnecessary labor. The arguments also are largely made up of long quotations from, the abstract, which is wholly unnecessary and of no assistance to the court. Appellant is particular to rely on each and all the errors assigned by him, but their substance, so far as they by any possibility merit a consideration, may be stated, viz.:
The court erred: 1st, in not hearing the cause in open court and summarily and without referring it to the master; 2d, in not confining the evidence to a general view of appellant’s property and income; 3d, in not compelling the master to obey the directions of the order of reference; 4th, in not ordering the master to report the evidence without his conclusions; 5th, in hearing.the cause upon the master’s report, exceptions thereto, and evidence taken by the master; 6th, in receiving and considering the master’s report after he had disregarded the terms of the order of reference; 7th, in denying the relief asked by appellant’s petition of January 22, 1897, and his previous petitions; 8th, in decreeing that appellee was, at the filing of the bill, living, and ever since had been-living, separate from appellant without her fault; 9th, in finding that the conclusions of the master, specifying the same, were correct; 10th, in hearing and considering immaterial, irrelevant and incompetent evidence; 11th, in allowing appellee $6,400 per annum as permanent alimony; 12th, in finding that appellee supported Susan and Madeline from the filing of bill until they respectively arrived at the age of eighteen years, and in awarding their custody to appellee; 13th in making the allowance of $8,156.61, or any allowance to appellee for the support of said daughters; 14th, in making the allowance to appellee of $8,000 solicitors’ fees; 15th, in allowing appellee $996.47 for suit money; 16th, in decreeing that appellant pay the costs to be taxed; 17th, in not considering and giving due weight to appellee’s separate fortune.
In thus stating the different contentions of appellant we have not intended to omit any question of substance or possible merit raised by him, and if we have done so, it must be attributed to the fault of his counsel in making his briefs and arguments so voluminous by assigning, repeating and arguing repeatedly numerous alleged errors of the court on matters which can be considered only on a writ of error, but not on appeal from the final decree only, and which alleged errors had been waived by appellant (as, for instance, the change of venue from Judge Collins), that, in the mass of material, we have overlooked some meritorious matter. 3 S. & C. Stat., Ch. 146, Sec. 17; Smith v. Brittenham, 88 Ill. 291; Freeman v. Freeman, 66 Ill. 53.
As to appellant’s first contention, the court, in referring the cause to the master to take proof and report the same with conclusions thereon, exercised the power given him by Sec. 39, Chap. 22 of the Statutes of this State (1 S. & C., p. 587). The discretion given the court by the statute is a judicial one, and we can not hold, from anything appearing in this record, that there was any abuse of it. Belleville v. Citizens’ Horse Ry. Co., 152 Ill. 171-89.
2d. To enable the court to determine what allowance should be made to appellee for alimony, one of the parar mount considerations was the nature and value of appellant’s property and the amount of his income. We see no reason why this matter should not be as carefully and thoroughly investigated as any other question of fact upon which it may become necessary for a court to adjudicate. Appellant has cited no authority on this point, nor have we been able to find any which supports the contention.
Appellant’s property, as disclosed by the pleadings and evidence, consists largely of real estate, widely scattered, some of it in litigation, very much of it mortgaged, some city and town lots improved, others unimproved, some improved and profitable farming lands, and others not so well improved, and bringing little'or no income. This being so, and it appearing from the allegations of the pleadings that there was a very wide difference between the parties, both as to the value and condition of appellant’s property and the income derived therefrom, we can not say that there was any error in the chancellor permitting a particular and thorough investigation in that regard.
3d. The order of reference, among other things, directs the master to submit his report within fourteen days from the date of the reference, and that the respective parties have such portions of time, respectively, within said time so limited, for the introduction of evidence and argument, as the master shall prescribe. The master did not file his report until more than three years and four .months had elapsed after the reference, nor was there any modification nor extension given by the court, and his conduct can not be excused unless the time limited was too short, or appellant is responsible for the delay, or waived his rights under the terms of the order; some or all of these considerations, will excuse the master. It should be noted that the order of reference provides that upon the hearing before the master, “ all competent evidence heretofore taken in this cause may be read . upon said hearing before the master.” The hearing before the master commenced the next day, after the entry of the order of reference, at 10 a. m., when appellee offered in evidence the testimony of E. E. Bowen, which had been theretofore taken in the case, and relating principally to the property and income of appellant; Appellant made objections to the testimony, the argument of which-objections consumed that day and the following day. At the close of the argument, the master decided to admit the testimony, whereupon appellant withdrew his objections, without any explanation, so far as the record shows, for this great consumption of time. Thereafter appellee offered in evidence the depositions of numerous witnesses, all of which was competent and material to one or more of the issues referred to the master, the reading of which and the consideration of objections thereto, consumed four days.
Appellee then proceeded with new evidence, and among other testimony her own was taken, with reference to the issues referred to the master, with some detail and particularity, the direct and re-direct examinations making 104 typewritten pages. Appellant’s cross and re-cross examination of this witness, together with the exhibits offered in connection therewith, takes up 370 typewritten pages of the record.
Appellant was also called to testify for appellee as to his property. His direct examination took twenty-eight pages of the record, while he caused himself to be cross-examined to the extent of 182 pages of the record. In view of this course pursued by appellant, we think he can not complain that more time was consumed before the master than was given by the order of reference.
Moreover, instead of going to the court for relief because of the master’s disobedience of the order of reference, appellant, upon the same day appellee’s proof was closed, commenced the taking of evidence on his own behalf, and continued taking it from day to day, almost daily for more than one month, and thereafter, from time to time, at intervals, for thirteen months, and did not then formally announce that his evidence was closed. This, we think, was a waiver of. the master’s action in extending the time beyond the order.
But if all this may not be considered a waiver, we think appellant’s action, for almost two years following this taking of the last proof before the master, in failing to make complaint to the chancellor until he asked a report of the testimony, without conclusions, in the preparation of a long brief which was submitted to the master, upon the questions before him, in the argument of objections to the preliminary report of the master, and in asking that the master report the testimony, without his conclusions, considered in connection with appellant’s previous conduct, as above stated, is ample to constitute such a waiver.
We also 'think that, considering the number of questions at issue, the amount and variety of appellant’s property, the stubborn resistance of appellant at every step in the cause, and the number and variety of legal objections interposed by him and his counsel during the progress of. the hearing before the master, the time fixed by the order of reference was entirely too short. Ho master and no court could properly hear the evidence and arguments of counsel, consider the same, and report intelligently thereon, in view of Avhat is shown by this record, in the time fixed by the court’s order.
4th. If we are right in holding that the order of reference did not give sufficient time, and that appellant, by his conduct, waived the extension thereof by the master, then there was no error in refusing to order the master to report the evidence tó the court, without conclusions. And especially is this true, when we consider that appellant made no complaint to the chancellor until after it was apparent to him that the report of the master would not be satisfactory to appellant.
5th. This position is not tenable, because it is not supported by the record. While it is true that the court did consider the master’s report on exceptions thereto, and the evidence heard by him, it also heard such further evidence as the parties saw fit to introduce, as to all the issues involved; and although the chancellor found that the conclusions of the master, based upon the evidence before him, were correct on that evidence, he, notwithstanding, reduced the allowance to appellee recommended by the master, $1,600 per annum, and to appellee for the support of the two minor children, $50 per month for each child, and it appears from the decree that these changes were made because of a change in the value of property and circumstances of appellant, after the taking of the evidence before the master.
6th. As we have seen, there was sufficient reason to justify the master in extending the time for taking of evidence beyond the time fixed by the order of reference, and no doubt the chancellor so considered. It was a matter within the discretion of the'court to receive and consider the master’s report, although he had not conformed to the time fixed by the order. We see no error in this regard.
7th. The relief asked by appellant’s petition of January 22,1897, and his previous petitions, was granted to the extent that the cause, as to the reduction of temporary alimony, what permanent alimony should be allowed, what allowance should be made for the support of the two minor children, from the filing of the bill, and the determination of all other questions and issues in the cause remaining undetermined, was set down for hearing upon evidence to be introduced by the parties, as to the then condition and value of appellant’s property and the then condition of his indebtedness and affairs. The substance of his previous petitions was included in his petition of January 22, 1897, which asked practically a rehearing of all the issues in the case, except whether appellee was living separate and apart from appellant without her fault when the bill was filed, and so continued, upon evidence then to be heard. The court did not leave out of view the evidence theretofore taken, but gave appellant the opportunity to introduce all the additional evidence that he desired. We see no error in this action of the court, and as to the conclusions reached, they will be later considered.
8th. The statement or stipulation of appellant, signed by himself and his counsel, presented and read in open court and filed as it ivas, and which states, among other things, viz., “ I do hereby stipulate that the plaintiff, at the time of the commencement of this suit, was living and ever since has been living separate and apart from her husband without her fault, and may take a decree with my consent for such sum as may be reasonable and just for her separate maintenance,” amply justifies the finding and decree of the court, in so far as it relates .to her living separate and apart from appellant without her fault. The argument of appellant that this stipulation, by reason of the circumstances under which it was presented and acted upon, constituted a contract between appellee, the court and appellant, which removed from the consideration of the court all questions in the case, direct as well as incidental, except the mere matter of amount of alimony to be paid to appellee, can not be maintained. The question of custody and support of the two minor children had all along been a distinct and contested issue. The matter of suit money and solicitors’ fees, which are allowable under the statute in every suit for separate maintenance, was also made an issue by the pleadings. Neither of these questions was removed or in any degree affected by the stipulatidn. As incidental to the determination of the amount of alimony to be awarded appellee, there remained to be considered, besides the property and income of appellant and appellee, their ages, health, past and present habits, social condition and circumstances in life, and the misconduct of appellant. This point will be more fully considered under the tenth division.
9th. We deem it unnecessary to consider in detail, under a separate heading, all the conclusions of the master, inasmuch as they are referred to in other parts of this opinion, in so far as we think they should receive any special mention. Except as specially mentioned, a full consideration by us of the evidence before the master has caused us to conclude that his findings' are sustained by the weight of the evidence, and the chancellor did not err in sustaining the master in his conclusions upon the evidence heard' in 1894, and prior thereto. Appellant has severely criticised the master for stating in his report, as he did, that the main, issue in the cause is whether appellee was entitled to have a decree awarding her a separate maintenance, and in proceeding to make a finding on that issue, although that issue was not referred to the master. We are unable to understand this statement and finding of the master, in view of the order of reference, but it is unimportant because the issue in this regard was admitted by appellant’s stipulation of January 3, 1893. Also, we are unable to understand why the master should report, and the court should affirm his finding, that all the material allegations of the bill are supported by the proofs, so far as they were referred, when it is alleged that appellant committed adultery with a lady not Mrs. Louis, naming her, when no evidence was introduced on that point. It must have been an oversight of the master and the court, and, moreover, it is not important, because the court has certified the adultery charges were not considered by him.
10th. That the master admitted incompetent evidence relating to charges of adultery made against appellant with Mrs. A. B. Louis, must be conceded. This evidence was of conversations between several of the witnesses called by appellee and Mrs. A. E. Louis, out of the presence of appellant and so far removed in time and place from any alleged act of adultery that the conversations could not be considered a part of the res gestae, and were therefore inadmissible under well established rules of evidence. There was, however, some evidence of this nature (that of Kate Coughlin, for instance) admitted, which came clearly within the rule making it competent as part of the res gestae, and in which the witness detailed an occurrence at Masury Flats, and stated that she saw appellant walk out of the room then occupied by Mrs. Louis, and when he walked out, Mrs. Louis said to witness, “ That is uncle,” referring to appellant. Springfield Ry. Co. v. Hoeffner, 175 Ill. 642.
In so far as evidence was competent which related to appellant’s adultery as charged iu the amended bill, or to his cruelty as charged in the original bill, it was also material and relevant, both on the question of the custody of the two minor children and on the amount of alimony to be awarded -appellee, the contention of appellant to the contrary notwithstanding, that no evidence on these matters was either relevant or material because it was eliminated by the stipulation of appellant. Hurd’s Stat., Ch. 6.8, Sec. 22; 2 Kelson on Div. & Seprn., Sec. 902; 2 Bishop on Mar. and Div., Sec. 1009; Stewartson v. Stewartson, 15 Ill. 145-8; Bergen v. Bergen, 22 Ill. 189; Mussing v. Mussing, 104 Ill. 126-9; Johnson v. Johnson, 125 Ill. 520.
Our statute, supraj provides that the court in fixing the amount of alimony in separate maintenance cases, shall, among other things, consider “ the circumstances of the respective cases.” The divorce act has a similar provision, providing that the court shall make such order “ as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just.”
In the Stewartson case, stipra, which was divorce, the Supreme Court said: “ The conduct of the parties may very properly be taken into consideration, upon the question of alimony. * * * In cases where the circumstances may justify a divorce under our statute, there may be widely different degrees of merit on the one side and censure on the other, which should very properly be considered in determining the question of alimony, quite independent of the pecuniary circumstances of the parties.”
• In the Mussing case, supra, it was held that the husband’s cruelty was properly considered in fixing the amount of alimony.
In Harding v. Harding, 144 Ill. 599, it was held that the amount of alimony in a separate maintenance suit, is arrived at in the same manner as in divorce cases.
In the Johnson case, supra, which was separate maintenance, it was held that, among other things, in fixing the amount of alimony, it was proper to consider “ the circumstances of the case,” among which was the husband’s cruelty ’ and his repeated charges that his wife was unchaste.
As we have held the question as to the custody of the minor children was not eliminated by the stipulation, it follows that all competent evidence on the question of adultery was also relevant and material on that issue.
It is not argued that the master improperly admitted any other evidence. The chancellor is presumed to have ignored all incompetent evidence, and there is sufficient competent evidence in the record to sustain the decree. This being so there should not be a reversal because of the incompetent evidence. Dunn v. Berkshire, 175 Ill. 250.
11th. A full and careful consideration of the evidence bearing upon the amount of appellant’s property, his income therefrom, his circumstances and situation generally, the appellee’s separate property, social position, health and circumstances, the general family history and manner of life of the parties prior to and since their separation, aside from the delictum of appellant as disclosed by the evidence, has led us to the conclusion that the decree of the chancellor in awarding appellee $6,400 per annum as permanent alimony should not be reversed. The evidence is conflicting in many respects, and we are unable to say that the finding of the chancellor is manifestly wrong. The court saw many of the witnesses on the trial, and his findings should not be disturbed unless they are clearly and manifestly against the evidence. Delaney v. Delaney, 175 Ill. 198.
This principle may also be properly applied to all the other issues in the case on which the evidence is conflicting. Anything like a comprehensive review of the evidence bearing on this finding would require an enormous amount of labor, which could prove of little or no benefit. It seems sufficient to say, that in our opinion the chancellor would have been justified in finding from it that at the time of the hearing, in January and February, 1897, appellant was worth, over and above all his debts, an amount not less than $500,000, or even $1,000,000, and that he had a gross annual income from his property of at least $80,000, and a net income of $15,000 annually. A very important consideration in this regard is the fact that while appellant insisted that at the time of the hearing before the master in 1897 he had no net income, he declined to produce his books of account for examination. Also, in this connection, as well as with reference to all other matters in which the weight of appellant’s testimony is important, it may not be amiss to consider the fact, which appears from the record in case No. 7765 (Harding v. Harding, post), of this court, between the same parties, which was by agreement heard with this case and in which the record in this case was to be considered so far as material, that appellant, on August 31, 1897, filed a bill for divorce, sworn to by him, against appellee, in the Superior Court of the County of San Diego, in the State of California, in which he alleges, among other things, that in the month of February, 1890, appellee willfully and without just cause deserted and abandoned him, and ever since has been and still continues so to willfully and without just cause desert and abandon him, and to live separate and apart from him without any sufficient cause or reason. This sworn statement of appellant, when considered in connection with appellant’s stipulation and the evidence in the case, we think tends strongly to support the conclusions of the master and the court, but it is unnecessary to, and we do not, base our conclusion, in affirming the Circuit Court, upon this statement', since it was made after the decree in this cause. If the matter of appellant’s deUctum was to be considered, which we have seen was an entirely proper matter for consideration, then there is a much stronger basis of support for the decree in this respect. The master considered appellant’s delictum (both cruelty and adultery) .in arriving at his conclusions, but the chancellor has certified that he did not consider or pass upon the question of adultery, because .he regarded it as unnecessary in view of appellant’s stipulation of January 3,1893, although the master found facts which practically show that appellant was guilty of cruelty to appellee as well as of adultery with Mrs. A. E. Louis, and the decree approves the master’s findings except as to the amount of alimony and the amount of the allowance for the minor children.
It is contended by appellant that the proof did not sustain the findings of the master, that it failed to show appellant was guilty of adultery with Mrs. Louis, and therefore, for this reason, it could not form, an element in fixing the amount of appellee’s alimony. However this contention may be as to the adultery, which we do not decide because the chancellor did not, the fact remains that appellee, upon appellant’s admission .in open court, lived separate and apart from appellant without her fault. This can, on this record, only be referred to appellant’s cruelty, if he was not guilty of adultery, and that must have been the conclusion of the chancellor.
12th. The evidence is nowhere disputed that Susan and Madeline voluntarily went with appellee when she separated from appellant, nor is it disputed that they were supported and maintained by appellee from the time the bill was filed until said daughters respectively arrived at the age of eighteen years.
What has been and is hereafter said with reference to appellant’s conduct, as it relates to his cruelty to appellee, his conduct toward his children, the ages and needs of the daughters, is a sufficient reason why appellant should not have the care and custody of his daughters as against appellee, and would have justified the court, at the date-of filing the bill, in awarding their custody to appellee if she were a fit person, and that is not and can not, under this record, be seriously questioned. The difficulty presented is in the fact that no order as to their custody was made, but the question was reserved by the court. Appellee asked their custody by her bill and in repeated applications thereafter renewed it, the appellant resisted, and the court did not decide until the final hearing. It seems to us there can be no' valid or legal objection to the court doing on the final hearing what it might have done when the bill was filed, had the evidence to justify its decree then been before the court.
13th. The evidence, in our opinion, bearing upon the manner of life of the Harding family prior to the separation of appellant and appellee, the social position of the family and the ages and needs of the daughters, and the ability of appellant to pay, justified the finding of the chancellor as to the amount of the allowance made to appellee for their support and maintenance. A much more difficult question is presented as to whether any allowance could be made until after the court had awarded the custody of the daughters to appellee.
In Plaster v. Plaster, 47 Ill. 290, by decree of divorce in favor of the wife, the custody of her child by the husband was given her, but made no provision as to how the child should be maintained. It was held on petition of the divorced wife, that the husband should be required to .pay her for the child’s support. The court says, in speaking of the parents’ duty to support children :
“ This duty devolves first upon the father and next upon the mother, so long as they are of tender years and unable to provide for themselves. * * * His (the father’s) being adjudged by the court to be unfitted to have the custody, care and education of the child, did not, nor could it, release him from both his natural and legal duty. * * Plaintiff in error (the divorced wife) owed him no duty as a wife, and her duty to support the child continued as before, secondary, and his primary.”
In Rogers v. Rogers, 51 Ill. App. 683, where the wife had been divorced from her husband, without any provision as to custody of a minor child, the court held that the husband was liable to his wife for the child’s support, by the wife subsequent to the divorce.
In Forest v. Forest, 25 N. Y. 505, 518, the wife was, on divorce, awarded alimony from the time her bill was filed, although pending the suit, which was not heard for several years after commencement, she had a temporary allowance. The Court of Appeals approved the decree.
In Burr v. Burr, 10 Paige Chy. 20, a similar practice was approved in a case of separation a mensa et thoro.
In Dooley v. Dooley, 19 Ill. App. 391, the court held (Baker, J., since of the Supreme Court, delivering the opinion) in a suit for divorce, that an allowance pendente lite for the past maintenance, at a domicile other than the husband’s own, of the wife and children, was not improper, and affirmed it.
In Obrock v. Obrock, 32 Ill. App. 149, a decree lor separate maintenance of the wife in the past was affirmed. Also in Becker v. Becker, 79 Ill. 532, a decree for divorce, awarding children to wife, and for her and their past maintenance, as well as future, was affirmed.
We do not understand that anything said by the court in Harding v. Harding, 144 Ill. 603, necessarily conflicts with the Dooley or Becker cases, s%opra. In the Harding case the trial court did not adjudicate on the question as to the custody of the children, and the Supreme Court held that it was improper to make an allowance to the wife for their support until their custody was awarded to her. In Zilley v. Dunwiddie, 74 N. W. Rep. 126, the Supreme Court of Wisconsin held that where a decree of divorce against the husband for cruelty, awarded the custody of the children to the mother until the youngest child was ten years of age, but making no provision for their support, and the youngest child remained with the mother, by her solicitation, after he attained the age of ten years, and was supported, by her, though the father repeatedly requested the mother to allow him to take the child, he offering to educate it and give it a home with him, she refusing each time to give her consent, the father’s estate was liable to the mother for the child’s support.
The learned judge, Pinney, cites with approval the Plaster case, 47 Ill., supra, and says :
“ The father is under legal obligation to provide for the support of his children if they remain with the mother after her divorce, and as against the public and the children he can not escape the duty. * * * It was the right and the duty as well of the husband to obtain the custody and control of his infant son, and to support him after he arrived at the age of ten years. We consider it against the policy of the law to encourage a father thus obligated to attempt to ignore or evade his parental duty, or to cast it upon any other party, so as to enable him to convert such, parental neglect and misconduct into a shield against parental liability. Domestic and social duty alike required him, when his son arrived at the age of ten years, to enforce liis parental rights and to discharge his parental duties.”
To a like effect are McGoon v. Irvin, 1 Pin. (Wis.) 526; Buck v. Buck, 60 Ill. 107; Plaster v. Plaster, 67 Ill. 04; Pretzinger case, 45 Ohio St. 452-60; Holt v. Holt, 42 Ark. 497.
In the two latter cases, the Plaster case, 47 Ill., supra, is referred to with approval. If, as said in the Plaster case, the husband’s liability to support the children was primary and that of the wife secondary when they had been divorced, that was also true at the common law (2 Kent’s Comm. 190), and is not changed because of the marriage relation. If appellant desired, in good faith, the custody of his daughters during all this long litigation, he could have applied for it at any time, but he saw fit to stand by and defend against appellee’s application for their custody, and prevailed upon the court to reserve its decision until the final hearing. If it was right, and as we have seen in a number of instances the Supreme Court has so held, to give a wife, on final decree in case of divorce or separate maintenance, an allowance for her past support, and that of her minor children who resided with her pending the suit, without an order awarding her their custody until the final hearing, we are unable to see why it is not proper in this case, in which appellant is at fault, and also resisted appellee’s application for the custody of her children, for the court to 'award the • custody of the two daughters to appellee and to make her an allowance for their support. The court could do in this regard, on final hearing, what it could have done when appellee first asked the custody of her daughters, if it had then had the evidence, before it to justify its decree.
14th. The testimony as to solicitors’ fees, for the actual time spent by appellee’s solicitors and their clerks under their directions, in the taking of testimony before the master, in preparing for trial and in court, at the rates testified to by appellant’s witness, Scovel, as being reasonable and usual, would justify the decree of the court in this regard. Mr. Miller gave eighty days to the case, of which thirteen days was in the court and the remainder before the master and in his office; Mr. Starr, 102 days, of which twenty days was in court and the remainder before the master and in his office. Their clerks gave 147 days’ time to the case, and it appears that they were lawyers and experienced in the line of work which they did. Their, j the clerks’ work, appears from the evidence to have been reasonably worth §10 per day. Mr. Scovel testified that reputable lawyers in Chicago for court work received usually and ordinarily $75 to $100 per day, and for services in their offices, outside of court, and before a master, $25 per day. The testimony on behalf of appellee would justify a much larger allowance for solicitors’ fees than was decreed. From a full consideration of all the testimony bearing on this question, together with the record as presented in this court, disclosing, as it does, a bitter and stubborn defense at every step in the cause, an examination as to values, income and incumbrances of numerous and widely separated pieces of real estate, of numerous facts bearing upon the lives, family history and method of life of the parties, the delictum of appellant as affecting the alimony of appellee and the custody of the children, the examination and preparation of the legal questions arising in the case for presentation to the master and the court, and the presentation of all these matters to the master and the chancellor, and judging the whole in the light of our own experience at the bar and on the bench, we are of opinion the allowance of $8,000 for appellee’s solicitors is justified and should stand.
15th. The allowance of $996.47 for suit money is entirely justified by the evidence. It was mainly for services of stenographers employed by appellee and her solicitors in making copies of the testimony in the case, and in taking dictation of an abstract of the testimony for their use, also for fees of the master paid by appellee. A larger allowance might have been made under the evidence.
16th. As to the costs, appellant has not specified any particular part of the costs which he claims should not have been taxed against him, but has been content with' generally assailing the master and appellee’s counsel for making large and unnecessary costs in the case. We can not say that no costs should have been awarded against appellant, and without some specification in this regard, we will not search through the record to determine the matter. We have not even been referred to any bill of costs taxed against appellant.
17th. The contention of appellant that the court did not consider and give due weight to the appellee’s separate property, is not sustained by the record. There is a large amount of testimony in different parts of the record relating to appellee’s property. In one place sixteen pages of the abstract are taken up with appellant’s testimony before the master concerning appellee’s property, most of which he claimed she got from him. Appellee also testified fully regarding it, and that she had spent substantially all of it in the support of herself and children, and in paying her expenses in this suit. The master did not report specifically on this point. Appellant, in his petition of January 22, 1897, asks that this matter be considered, and was given an opportunity to present evidence on this petition in open court, but the record fails to show that he availed himself of this privilege. The decree of the court in part allowed, and in part denied, appellant’s petition, but there is nothing in the decree nor in the record, which has been called to our attention, to show that the chancellor did not consider the testimony regarding appellee’s separate property.
In so far as appellee’s counsel have argued the cross-errors, what has been said in our opinion sufficiently answers the several contentions of appellee in that respect. It is impossible, without writing for weeks, to discuss all the many contentions of appellant in this record, but having given the most careful consideration to every matter, which to us seems to have any possible merit, we are of opinion that justice, as nearly as it can be attained, has been done, and the decree is affirmed.
