Lead Opinion
delivered the opinion of the court:
On July 17, 1908, plaintiff in error, Sallie M. Thomas, filed her bill for divorce in the superior court of Cook county against defendant in error, Morris St. P. Thomas, on the ground of desertion. An answer was filed on August 21, 1908, denying the charge of desertion, but no mention was made in the bill or answer of the existence of any children of the marriage. On October 29, 1908, the defendant filed his cross-bill, reciting evidence tending to show that he had not deserted his wife but that she had deserted him, which was followed by a statement that she had deserted him and averments that two boys were born of the marriage, Benjamin M. Thomas, then thirteen years old, and Carr M. Thomas, ten years old, and that Benjamin was living with Mr. Thomas and the younger boy, Carr, was with his mother. The cross-bill did not seek a divorce but prayed for the care, custody, education and control of the two children and that Mrs. Thomas be enjoined from interfering therewith, and for such other and further relief as equity might require. Mrs. Thomas answered the allegation of the cross-bill that she had deserted her husband by denying it and demurred to the remainder, which set forth the birth of the children and matters relating to them and their custody. The court overruled the demurrer, and Mrs. Thomas electing to stand by it, the cross-bill was ordered to be taken as confessed. When the cause was reached for hearing on the original bill and answer thereto and the cross-bill taken as confessed, Mrs. Thomas moved the court to dismiss her bill without prejudice for want of prosecution, but Mr. Thomas objected and the motion was denied. Mrs. Thomas offered no evidence in support of her bill and the cause was heard upon the cross-bill taken as confessed, but her solicitor appeared and contested the right to a decree on the cross-bill. The solicitor for Mr. Thomas informed the court that a divorce was not wanted, and the relief sought by the cross-bill was the custody of the children. The court entered an order finding that Mr. Thomas was a fit person to have the custody, control and education of the children and giving him the same and enjoining Mrs. Thomas from interfering therewith, and ordering her to bring or send the boy Carr into the State and deliver him to her husband within thirty days. She did not comply with that order, and a final decree was entered dismissing her original bill for divorce, granting the prayer of the cross-bill and adjudging the costs of the suit against Mrs. Thomas. She prayed an appeal to the Appellate Court for the First District, which was allowed and perfected. The Appellate Court affirmed the decree and we granted a writ of certiorari, in pursuance of which the record is now under review.
The original bill prayed for a divorce on the ground of desertion. The cross-bill stated in detail that Mrs. Thomas had gone on a visit to Wisconsin and had not returned to the family home but set up a separate establishment a few blocks distant and had afterward gone to Sioux Falls, South Dakota, all of which was intended to show that the separation was her act, but the cross-bill did not ask for a divorce. Its prayer and its purpose were merely to obtain the care, custody, control and education of the two boys, and so much of the cross-bill as alleged facts concerning them and asked for their custody was demurred to on the ground that such matters were not germane to the original bill. Because the original bill stated nothing about the existence of any children of the marriage, it was insisted, by demurrer, that matters concerning their custody could not be made the subject of a cross-bill. The facts set up in the cross-bill were germane to the subject of the original bill in the sense that they related to the same matter. The custody of the, children was necessarily comprehended within the scope of the original bill although nothing was said about them. The filing of the original bill for divorce brought within the jurisdiction of the court the minor children of the parties by virtue of the statute, which authorizes the court, on application, to make such order concerning the custody and care of children during the pend-ency of the suit as may be deemed expedient and for the benefit of the children, and if a divorce shall be decreed the couft may make such order touching the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just. The cross-bill was not bad on account of the reason alleged in the demurrer, and when the demurrer was overruled Mrs. Thomas was still prosecuting her suit for divorce. The court did not err in overruling the demurrer, but the situation was afterward changed by the motion of Mrs. Thomas to dismiss her bill and her refusal to prosecute it further, and if the court could not grant the relief sought by the cross-bill regardless of the prosecution of the original bill, the decree must be reversed. ° ,
The statute provides' that after a cross-bill has been filed the complainant shall not be permitted to dismiss his bill without the consent of the defendant, and when Mrs. Thomas attempted to dismiss her bill the court denied her motion. A cross-bill may be filed purely as a matter of defense based upon facts arising after the cause is at issue. In such a case a defendant cannot avail himself of the defense by plea or answer, but must make it the subject of a cross-bill for the same reason that a complainant can only bring into the suit matters occurring after the filing of his bill by a supplemental bill. (Jenkins v. International Bank,
In England matrimonial causes were never under the jurisdiction of courts of equity, and in this country the jurisdiction is conferred by statute, which prescribes and limits the powers of the court. So far as the children are concerned, a court can, by virtue of the statute, only make orders concerning their custody during the pendency.of the suit, or upon a final hearing where the divorce is decreed. Some courts have held that the custody of children can be granted to one of the parties to a divorce suit where a divorce is denied, or not granted, which is the same thing, but the decisions rest either on a statute conferring such power or upon supposed general equity powers of the court. In Alabama there is a statute giving courts of chancery power, in all cases of separation between husband and wife where neither party shall obtain a divorce, to give the custody and education of the children either to the father or mother, as -may seem right and proper, and it was held that such an order could be made where there was an ineffectual attempt to procure a divorce. (Cornelius v. Cornelius,
A cross-bill which is filed merely as a mode of defense to bring into the case matters occurring after the cause is at issue requires no equity to support it, but a cross-bill which asks affirmative relief is in the nature of an original bill asking further aid of the court beyond the mere defense, and the relief sought must be such as the court, in point of jurisdiction, is competent to administer. (Tobey v. Foreman,
Mrs. Thomas refused to prosecute her suit for divorce, which she had a right to control, and asked the court to dismiss her bill, which the court" could only refuse to do because the cross-bill had been filed. As already shown, the court could not refuse to dismiss the original bill, under the provisions of the divorce statute, because a cross-bill had been filed which was unnecessary and asked for relief which could not be granted unless the original bill was prosecuted to a decree for divorce. The court proceeded to hear the cause upon the cross-bill, which asked for affirmative relief, by granting to the complainant therein the custody of the children; and if a husband cannot maintain a suit in equity against his wife for such a purpose the court was without jurisdiction and the decree was erroneous.
No case where such a bill has evep been filed in England or this country has been discovered by the careful research of the able counsel who have argued this case, and while the fact that it has never been done is not conclusive that it cannot be, it is satisfactory evidence that no solicitor has thought that it could be done. The argument in favor of such jurisdiction is upon the ground that courts of equity have a broad and comprehensive jurisdiction over the persons and property of infants. The existence of such jurisdiction has been frequently asserted in the strongest language, but such declarations are not different from like statements made with reference to jurisdiction over trustees and others occupying fiduciary relations. The jurisdiction can only be exercised when it has been acquired as to the particular person and subject matter in accordance with the practice in courts of equity, which is by the commencement of some sort of recognized proceeding in the court. What has been so often said respecting the jurisdiction does not mean that courts of equity take upon themselves the care, custody, education and maintenance of all the children within the territorial limits where they exercise their powers, but when a suit is instituted in a court of equity relative to the person or property of an infant he is treated as a ward of the court, and the court will not allow his rights to be prejudiced by any act, either of his own or of any other person. The court will protect the infant through a guardian ad litem or otherwise, as may be necessary, and will look to his interests and see that the guardian discharges his duty. (Lynch v. Rotan,
There is another power which courts of equity have concerning infants and their property, and that is the appointment of guardians. (Hohenadel v. Steele, 237 Ill 229.) The source of this jurisdiction is quite uncertain. Whether the power was originally a mere usurpation, or was legally delegated to the chancellor by the crown as parens patrice, or grew out of the practice of appointing guardians ad litem, the jurisdiction exists here by inheritance from the English courts of chancery and not because equitable rights of titles are involved. Like the power of any other court to appoint a guardian, that jurisdiction may be exercised upon a proper petition or application for the appointment of a guardian. But the cross-bill in this case cannot be regarded as such a petition or application. In Cowles v. Cowles,
We conclude that the court had no jurisdiction to award the custody of the children to Mr. Thomas, and that the Appellate Court erred in affirming the decree of the superior court.
The judgment of the Appellate Court and the decree of the superior court are reversed and the cause is remanded to the superior court, with directions to dismiss the original bill and cross-bill.
Reversed and remanded, with directions.
Dissenting Opinion
dissenting:
I do not concur in the reasoning or conclusion of the foregoing opinion. Our statute provides that the court in which divorce proceedings are instituted may make orders, pending such proceedings, as to the custody of the children, and if a decree of divorce is granted, make such further orders as to their care and custody, from time to time, as their interests may require. In Cowles v. Cowles,
It is insisted that the cross-bill is not germane to the matters raised by the original bill. The custody of the minor children was necessarily comprehended within the scope of the original bill, although they were not mentioned therein. (Snover v. Snover, 10 N. J. Eq. 261.) Under our statute it would seem that upon the filing of the bill herein the minor children of the marriage became, in a sense, wards of the court, and hence any suggestions as to their custody, in a cross-bill, would be germane and relevant. If it becomes necessary to grant affirmative relief in order to dispose of the matters in controversy and do complete justice between the parties, a cross-bill may be filed, in which such relief may be granted and circuity of action avoided. (Longshore v. Longshore,
The precise question here raised has never been passed on by this court. It 'is plain from the majority opinion that there are authorities that uphold its conclusion. Under the varying statutes and systems of procedure the courts have not all agreed on this question. But where, as in this State, the court having jurisdiction of divorces has also general chancery jurisdiction, in my judgment it would be not only for the best interests of the minor children, but in accord with sound public policy, for the court to retain jurisdiction in this proceeding for the purpose of making any orders as to the welfare of the children that justice may require. Unless prohibited by statute or well settled principles of law, a court of equity has always the power to do that which justice in a case requires. The chancellor in the superior court does not cease to be such because he sits to hear divorce cases. The statute regulating these proceedings does not purport to define fully the authority of the court. It commits thereto, subject to certain specific limitations, jurisdiction in all matters incidental to divorce. This statute is highly remedial and ought not to be strictly construed against the interests of the minors. A learned author has stated that while it may be necessary, in order to give a court of equity jurisdiction over infants, to have them made wards of the court, a suit was not necessary to that end; that any proceeding in or application to a court of chancery relating directly to the infant was sufficient. (3 Pomeroy’s Eq. sec. 1305, note 1.) While the divorce proceedings were pending in the superior court, no other court, by habeas corpus or otherwise, could interfere with its custody of the children. (In re Morgan,
The court having acquired jurisdiction of the subject matter and the parties to the suit at the instance and by the prayer of plaintiff in error, I cannot reach any other conclusion than that, on the plainest principles of equity, she should be precluded from questioning the jurisdiction of the court which she herself has invoked.