May v. May

Gen. No. 13,150 | Ill. App. Ct. | Jun 14, 1907

Mr. Presiding Justice Freeman

delivered the opinion of the court.

We discover nothing in this record to justify the Superior Court in undertaking to enforce the decree entered May 7, 1902, by the Circuit Court. Having found there was no common law or other contract of marriage since the entry of that decree divorcing the parties and granting alimony to the complainant, the jurisdiction of the Superior Court under the bill in the present case terminated. That bill prays the court to “determine whether a lawful marriage exists,” and if the court finds such marriage does exist, then for its dissolution, for alimony and “such further relief as equity may require.” When the Superior Court found that no marriage existed there was no occasion nor was there jurisdiction under the prayer to grant further relief and none was asked for. There was no occasion to attempt to enforce the provisions of the decree of the Circuit Court as to alimony. That court had and has ample power and jurisdiction to enforce its own decrees.

It is true that a bill in1 equity may be maintained to enforce a decree “where the rights of the parties have become so embarrassed by subsequent events, that no ordinary process of the court upon the first decree will serve, and it is therefore necessary to have another decree of the court to ascertain and enforce them.” Oberein v. Wells, 163 Ill. 101" date_filed="1896-11-09" court="Ill." case_name="Oberein v. Wells">163 Ill. 101. There was here no embarrassment of that kind. When it appeared that nothing had transpired since the original decree of divorce which had changed the status of the parties under that decree, that they had not been remarried and that the original decree of divorce with all its provisions as to custody of the children and alimony was in full force and effect, the present bill might properly have been dismissed, since the alternative relief prayed for could not he granted under the bill. If the Circuit Court was itself for any reason unable to enforce its own decree, then under a bill containing proper averments a court of equity having jurisdiction might do so. Such was the case of Barber v. Barber, 21 How. (U. S.) 582, cited by complainant’s counsel. No such case is presented by the bill under consideration. As a bill to review a decree the Superior Court was without jurisdiction to entertain it. Such bill must be filed in the court where the decree sought to be reviewed was rendered, and the Superior Court has no jurisdiction to review a decree of the Circuit Court and vice versa.

The decree of the Superior Court will be reversed and the cause remanded with directions to dismiss the bill.

Reversed and reminded with directions.