Gen. No. 12,180 | Ill. App. Ct. | Mar 13, 1905
delivered the opinion of the court.
The interlocutory or preliminary injunction having been granted solely on the verified bill, the foregoing statement of the contents of the bill is necessary to an understanding of the case. The contention of appellants’ counsel is, that the bill is merely a creditor’s bill and must be regarded as exclusively such, and that, considered as a creditor’s bill, it is bad in not showing that the complainant has exhausted her legal remedies. While many and perhaps most of the averments of the bill are such as would be appropriate in a creditor’s bill, yet they tend to show the impracticability, if not impossibility, of complainant collecting the alimony decreed to be paid to her, without the aid of the court, and, therefore, are pertinent if the bill is to be regarded as a bill to enforce the alimony decree, as contended by appellee’s counsel. But counsel for appellant says that the bill cannot be sustained as a bill to enforce the decree, for the reason that an application for enforcement of a decree for alimony must be made to the court which entered the decree, and that the bill was not filed in the court which entered the alimony decree. We concur in the proposition that an application to enforce a decree for alimony must be made to the court which granted the decree; but not in the contention that the present bill was not filed in the court which granted the decree. The contrary appears from the bill itself, to which alone we can look. The bill was filed in the Circuit Court, as the record shows, and it is expressly averred in it: “That, on the 26th day of July, 1897, this court, in a certain cause then pending in this court, wherein your oratrix was complainant and the said George F. Harding was defendant, entered a decree wherein and whereby it was ordered, adjudged and decreed that the said George F; Harding should pay to your oratrix,” etc. Then follows a statement of the original decree, the appeal to this court, the modification of the decree, etc., as shown in the statement preceding this opinion. Thus it appears from the record before us, that the present bill was filed in the same, court which granted the alimony decree. Even though it should be erroneously contended that the application for enforcement of the decree should be made before the judge who presided in the court when the decree was rendered, the record would not support the contention, as it is silent in that regard. We cannot presume, however, that the learned counsel for appellant would so contend. That the court granting a decree for alimony has ample power to enforce the decree, when enforcement is possible, there can be no question. Hurd’s Rev. Stat. 1903, C. 22, sections 42 and 47; Blake v. The People, 80 Ill. 11" date_filed="1875-09-15" court="Ill." case_name="Blake v. People">80 Ill. 11; Wightman v. Wightman, 45 Ib. 167; Becker v. Becker, 15 Ill. App. 247" date_filed="1884-10-10" court="Ill. App. Ct." case_name="Becker v. Becker">15 Ill. App. 247; Bishop on Marriage, Divorce, etc., parag. 1089, et sequens.
In Wightman v. Wightman, supra, the court say : “We have no doubt a court of chancery has power, in addition to making a decree for alimony a lien on the lands of the defendant, which it would be without a decree to that effect, to enforce the decree by attachment for contempt, and if the defendant remains contumacious, defying the court, may also sequester his estate.”
In Blake v. The People, supra, it is said: “It is apprehended that decrees for alimony may be enforced by execution or other final process, as other decrees in chancery, or any other mode consistent with the practice in the courts of chancery; but, as cumulative remedies, no doubt, the court may enforce decrees for alimony ‘ either by sequestration of real or personal estate, by attachment against the person, by fine or imprisonment, or both, in the discretion of the court,’ as other decrees in chancery may be enforced.”
The court may appoint a receiver in a proper case, and, in the meantime, may enjoin alienation of the defendant’s property, until fully advised as to whether a receiver should be appointed. Carey v. Carey, 2 Daly (N. Y.), 424. Even pending a bill for divorce, or separate .maintenance, the husband may be enjoined from alienating his property. Springfield M. & F. Ins. Co. v. Peck, 102 Ill. 265" date_filed="1882-03-28" court="Ill." case_name="Springfield Marine & Fire Insurance v. Peck">102 Ill. 265, 269. A fortiori, this is true when alimony has been decreed.
It is usual to proceed by petition, in the same suit, when the aid of the court to enforce a decree for alimony is sought; but we perceive no objection to proceeding by bill, especially when necessary to bring in new parties, as in the present case, and we think the bill in question may well be considered as incidental or supplemental to the bill for separate maintenance, or at least as a petition in the separate maintenance suit.
Appellants’ counsel contend that complainant was legally bound to apply all payments made by defendant George F. Harding since May 27, 1900, on the arrearages, of alimony due prior to and at that date. “ The law is well settled that when a debtor makes a payment without specifying on what debt it shall be applied, the creditor has a right to select the debt on which he will give the credit.” McFarland v. Lewis, 2 Scam. 345; Hare v. Stegall, 60 Ill. 380" date_filed="1871-09-15" court="Ill." case_name="Hare v. Stegall">60 Ill. 380; Wilhelm v. Schmidt, 84 Ib. 183.
The bill avers that the defendant George F. Harding, gave no direction as to how the payments made should be applied, and that complainant applied them to the monthly installments of alimony accruing due after May 27, 1900, which she had a right to do. The defendant the First National Bank of Chicago, is enjoined “ from permitting said defendants to withdraw or remove from your custody any money or other valuable thing, or things, on deposit with you, or held' by you to the credit of the said defendants, or any of them.” In regard to this part of the injunction, counsel for appellants say: “ The effect on the bank is to drive off and keep away its customers, since none of the other appellants is very likely to put any more of his money, stocks and securities into its keeping, subject to the operation of the injunction.” The bill refers to nothing deposited with the First National Bank except shares of stock, and we do not think the injunction can be construed, so far as the bank is concerned, as applying to anything else. If any of the defendants to the bill has an account with the bank, or money deposited in it to his personal credit, which money belongs to such defendant, and in which the defendant George F. Harding has no interest, the Circuit Court will, without doubt, on proper showing, modify the injunction as to such defendant. In view of the facts stated in the bill-and the legal principles applicable thereto, we are of opinion that the court did not err in granting the injunction.
Inasmuch as we think the bill maintainable as a bill or petition for the enforcement of the alimony decree, it is unnecessary to express any opinion as to whether it can be maintained as a creditor’s bill.
The order granting the injunction will be affirmed.
Affirmed.