102 Ill. App. 360 | Ill. App. Ct. | 1902
delivered the opinion of the court.
The record contains no evidence in any form; therefore the decree rests solely on the findings of fact in it. Rump v. Rump, 94 Ill. App. 582, and numerous Supreme Court cases therein cited.
If such findings of fact are insufficient, the decree must be reversed. The appellee avers in her amended bill that some time in the latter part of 1877 or in the first part of 1878, a common law marriage occurred between the parties. Appellant, in his answer, expressly denied that there was any marriage of the parties prior to January 1, 1900. The only specific act of cruelty charged after January 1900, was June 24, 1900, at which last date it is averred in the bill that appellant threw the complainant out of the house and threatened to kill her. If the marriage occurred January 1, 1900, as averred by appellant, then a divorce for the alleged act of June 24, 1900, could not legally be granted, it being the law that “in no instance is a single act of physical violence a sufficient ground for divorce.” Hitchins v. Hitchins, 140 Ill. 326, 329.
It was, therefore, a vital question and necessary to be proved, whether the marriage occurred prior to January 1, 1900, and prior to acts of violence other than the alleged act of June 24, 1900, and there being no evidence on that question in the record, there should have been a finding by the court as to the time of marriage. A decree musts be supported by facts, and the necessary facts, if not appearing from evidence preserved in some form, must be found by the court in the decree. The court, in the present case, has not found when the parties were married, or that they were married at all. The only finding of fact by the court is, “ That the defendant has been guilty of extreme and repeated cruelty.” It is not even found toward whom the cruelty was exercised, or that the cruelty was as charged in the bill. The bill contains a general allegation of cruelty at divers times since said marriage, followed by allegations of specific acts of cruelty. But if it could be held that a decree might go on the general allegation, supported by proof, still it would have to appear that the acts proved occurred after the marriage, and so proof of the time of marriage would be necessary, and if necessary to be proved, it should be found in the decree to support the decree in the absence of evidence.
We regard the finding insufficient to support the decree. The decree is erroneous in ordering “ that the defendant pay to the solicitor of the complainant the sum of fifty dollars for solicitor’s fees.” An allowance to appellee to meet her expenses in the suit, including solicitor’s fees, should be to her and in her name, and should not be in favor of or in the name of her solicitor. Anderson v. Steger, 173 Ill. 112; Lynch v. Lynch, 99 Ill. App. 454.
The decree will be reversed and the cause remanded.
