| Ill. | Nov 1, 1897
delivered the opinion of the court:
The ground of the motion to dismiss was, that the plaintiff in error was an insane person at the time the writ of error was sued out, and by reason of such insanity was incapable to elect whether he will remain married or become single, and no one can elect for him.
It seems well settled the right to sue for an absolute divorce is a personal right and requires the intelligent action of the injured party, for which reason it has been frequently held a guardian or next friend of an insane person cannot maintain a suit for absolute divorce for bis ward. It is also well settled in this State a writ of error is a new suit. The reasoning of the Appellate Court is, that an insane person, being incapable in law of instituting and maintaining a bill for divorce, is likewise incapable of maintaining a writ of error for the purpose of questioning the regularity and legality of a decree of divorce entered against him in a proceeding instituted after he became insane. We are unable to assent to this view. Actions for divorce may be instituted against insane defendants for a cause of divorce committed before the period of insanity. When such an action is begun, a court of equity, in view of the peculiar duty of such courts to protect the personal and property rights of lunatics, will appoint some discreet and proper person to conduct the defense. The power possessed by courts of equity to provide that such defense shall be made is not exhausted by the appointment of a conservator ad litem or next friend to defend in the trial court, but may be exercised in courts of review, and further defense of the action for divorce prosecuted by any remedy provided by law whereby reversal of a decree of the trial court may be obtained. A writ of error is a new suit, but at the same time, when brought to review a decree for divorce, is but a step in defense of the relief sought to be obtained by the complainant in the original bill.
In Bradford v. Abend, 89 Ill. 78" date_filed="1878-06-15" court="Ill." case_name="Bradford v. Abend">89 Ill. 78, a bill in chancery filed by the conservator of an insane wife to set aside a decree of divorce was entertained by the circuit court and its decree vacating a decree of divorce was affirmed by this court. It is true that in that case the bill for divorce was filed in the name of the wife while she was insane, and that the principle that an insane person cannot maintain a bill for divorce was applied by this court in support of the decree of the circuit court in vacating the decree for divorce. 1 But it is further true that the insane wife was equally as incapable of electing whether she would remain married or single as was the plaintiff in error in the case at bar, yet the aid of the court against the decree of divorce was fully recognized and enforced. In the case cited, the ground of attack upon the decree could not be availed of in a writ of error, and for that reason resort was had to an original proceeding in the trial court. Had such ground been apparent from an inspection of the record, no reason is perceived why the relief might not have been had through the medium of such writ. Though an insane person may be incapacitated from maintaining an action for divorce, still 'it by no means logically follows no legal remedy can be availed of to remove a decree of divorce entered against the person so unfortunately afflicted.
It is not essential the same person who represented the insane party as guardian ad litem in the circuit court should appear as next' friend in a writ of error. (Ames v. Ames, 148 Ill. 321" date_filed="1894-01-16" court="Ill." case_name="Ames v. Ames">148 Ill. 321.) True, as suggested, the insane person has not capacity to consent to a change of the representative, but it is within the power of the court to appoint or accept another person to act in that capacity. Rev. Stat. sec. 13, chap. 86, “Lunatics.”
We think no sufficient reason appeared for dismissing the writ. The judgment of the Appellate Court is therefore reversed and the cause remanded to that court, with directions to overrule the motion.
Reversed and remanded.