| Ill. | Dec 15, 1852
George Jacob Shillinger filed a bill for a divorce from his wife, Elizabeth, in the circuit court of Morgan county, to the March term, 1852, alleging, in substance, that he was married to the said Elizabeth, in the city of Philadelphia, in the year 1843, and that they lived together as husband and wife till 1848, when it was. agreed between them that she should remain in Philadelphia with her relations, while he was to come west and seek a place for their future abode, when she, with the brother of complainant and his family, were to come and join the complainant in their newly selected home; that the complainant left with the said Elizabeth his personal effects, and sufficient means for her support, came to Illinois, and settled in Cass county, in October, 1848; that he immediately informed his wife of his location, and requested her to join him; that he had sent her money, and requested her to come to Illinois, but that she had refused, and expressed a determination never to live with him again; that in August, 1851, the brother of complainant, being then about to remove to Illinois, called on the said Elizabeth, and endeavored to persuade her to accompany him and join'her husband, but she utterly refused to do so, and expressed her determination as fixed never to live with him again ; charging that the said Elizabeth, since the latter part of the fall of 1848, has wilfully absented herself from the complainant, without any reasonable cause whatever, and praying for a divorce.
Notice of the pendency of the suit was given by publication, and the summons issued was returned “ not served ; ” the bill was thereupon taken for confessed, and the cause referred to a “ special master, to take the prpofs as to the truth of the allegations of the bill, and report to the court the facts proved, as also his opinion, whether the complainant was entitled thereupon to a divorce.” The master made a report, setting forth the facts proven, and expressing the opinion, that the complainant was entitled to a divorce, whereupon a decree was entered, which recites, that “ it appearing to the court from said report, that said defendant has, for more than two years last past, abandoned the bed and board of the complainant, without any good and sufficient cause therefor,” &c. The decree then goes on to dissolve the marriage relation subsisting between the parties.
The defendant brings fhe case to this court, and assigns for error the granting of,the decree of divorce.
The statute declares, that in all cases for a divorce, “ if the bill or petition shall be taken for confessed, the court may proceed to a hearing of the cause, by examination of witnesses in open court.” R. S. ch. 33, § 5. From this provision of the statute, it is clear that a court has no authority to decree a divorce on a bill being taken for confessed, without proof to sustain its allegations; and, in this respect, a proceeding for divorce differs from an ordinary suit in chancery; for in the latter case, it is discretionary with the court, when a bill is taken for confessed, to hear testimony or not, in its support. The court may, under the statute, examine witnesses orally in court, or it may, under its general chancery powers, refer the cause to a master, as in this instance, to take the proofs, and report the facts, or they may be proven by depositions in writing; but in some way, the facts to justify granting the divorce must be proven to the court; and it would be erroneous to grant the decree, on taking the bill for confessed, without any evidence. It is not necessary that the evidence upon which the court acts should be preserved in the record; but it will be sufficient, if the record show that the court heard evidence, and found the allegations of the bill to be true ; if, however, as in this case, the whole evidence on which the court acted is set out in the record, and it is insufficient to have warranted the decree, it will be reversed.
TheJdecree in this case professes to be based on the master’s report as to facts, and that report is made part of the record. On looking into it, it is found to be essentially defective in the evidence of those facts which would have warranted the decree.
The most material defect in the report is the failure to show that the defendant ever refused to come and join the complainant, or was ever applied to by him to do so, till the application was made by his brother, about the time of his starting for the West, in 1851, and shortly before the filing of this bill. By the complainant’s own showing in his bill, the defendant was to come to the West with his brother, who, as the master’s report shows, did not come till in 185J ; and although the master states generally in his report, that it was proven that the said defendant was to come to her husband whenever he sent her money to bear her expenses to the West, and that money was sent and she requested to come; yet he states no time when the money was .sent or such request was made, except when it was made by the brother, as before stated. The master, after setting forth what was proven before him, under eleven distinct heads, states generally, in conclusion, that “ he finds the allegations of the bill of complainant substantially proven,” and that he “ thinks the facts proven are sufficient to entitle the complainant to a divorce.”
This general statement at the close of the report, is manifestly the master’s conclusion drawn from the facts which he had before stated to have been proven, and cannot be considered as a statement of the proof of any new fact.
It is admitted, that it was by the husband’s consent that the wife remained in Philadelphia when he came to the West; and she cannot be considered as having unreasonably deserted or absented herself from him, till he gave her an opportunity to join him, and she refused to do so, or to live with him again; and such absence must then have been continued for two years, to have entitled the complainant to a divorce, under the statute, for that cause.
The master’s report, so far from showing a refusal by the defendant to join her husband for the space of two years, fails to show any such refusal till in 1851, and a few months before the bill was filed.
Decree reversed, and cause remanded.
Decree reversed.