52 Ill. 370 | Ill. | 1869
delivered the opinion of the Court:
It appears that on the third day of October, 1868, Helson Hooker filed a-bill in the Woodford circuit court against appellee, for the purpose of obtaining a divorce. Appellee answered the bill, and filed a cross bill, in which she made appellant and others defendants, and prayed a divorce and for alimony. On a hearing upon the original and cross bills, the court rendered a decree, granting a divorce to appellee, and allowing her $12,000 alimony, and appellants were ordered to pay appellee $4578 as a part of the amount.
After filing the original bill, and before the cross bill was filed, on the thirteenth day of October, 1868, appellee commenced a suit against her husband for separate maintenance, under the law of the fifth of March, 1867, and sued out a writ of ne exeat, requiring him to give bond in the sum of $5000.
He was arrested, and appellant, Harper, became his security on the ne exeat bond in that sum. Emmet Hiekox, ope of the defendants, placed in the hands of appellants $5000 in United States bonds to indemnify Harper for becoming security for Helson Hooker on the ne exeat bond, and to secure Ingersoll, Harper & Cassell their attorneys’ fees in the two suits then pending.
•The suit commenced by appellee has not been tried, and no order made formally disposing of it. This case is brought to this court by appeal, and it is assigned for error, that the court below decreed that appellants should pay to appellee $4578, the balance that remained of the bonds after deducting attorneys’ fees.
It is urged that the decree is wrong, inasmuch as the suit for separate maintenance, so far as this record discloses, remains undisposed of in the court below. That court, on the evidence, found that the bonds placed in the hands of appellants by Hickox, belonged to Nelson Booker, and he, having fled the country, as is conceded, it was decreed to appellee as part of her alimony.
It is not contested that, had the suit for separate maintenance been dismissed, the decree would have been proper, and the question is presented, whether the decree rendered in this case has not, in effect, produced the same result.
It is manifest that the rendition of this decree renders it impossible for appellee to proceed further in that case. In this case, all of the questions in reference to alimony and separate maintenance that could arise on that bill have been heard and adjudicated. Should appellee sue upon the ne exeat bond, this decree could be pleaded as an effectual bar to a recovery. The questions which would arise in such a suit have been presented and determined in this, and have become res adjudicata.
It is true, there was no formal order of the court consolidating the two cases, but the result was the same. The bill for a divorce presented the question of alimony as fully as did the suit for separate maintenance, and when the divorce was granted, it became the duty of the' court to proceed, on the application of appellee, to hear and determine that question. Had the divorce been refused, then it may be that the other suit might still have progressed to a hearing and final decree. But that question is not before us for decision. The decree of the court below is affirmed.
Decree affirmed.
