Hunter v. Hunter

100 Ill. 519, 1881 Ill. LEXIS 138

Opinion

Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case is for divorce and separate maintenance, and was brought by Ella B. Hunter against James M. Hunter. In the circuit court two issues were submitted to a jury for their judgment on the questions of fact involved:

First—Has defendant been guilty of extreme and repeated cruelty, as charged in complainant’s bill; and if not,

Second—Has defendant been guilty of such conduct and treatment towards complainant as justified her in separating herself from and living apart from defendant.

As to the first proposition submitted, the jury found defendant not guilty; and as to the second issue, they found defendant had been guilty of such cruelty toward complainant as justified her in separating herself from and living apart from defendant. Thereupon the court entered an order dismissing so much of the bill as prayed for a divorce, and further decreed complainant was entitled to separate maintenance from defendant. On defendant’s appeal, the Appellate Court reversed the decree of the circuit court, and remanded the cause, with directions to that court to dismiss the bill. Complainant brings the case to this court on appeal.

It would seem the decree of the circuit court was not final in that sense from which an appeal would lie. The court simply decreed, on the verdict of the jury, complainant was entitled to separate maintenance from defendant. What sum defendant should pay for that, purpose was not determined. The cause was continued to hear evidence. Until the sum defendant should pay for the separate maintenance of complainant was determined, and a decree pronounced definitely settling the rights of the parties, it could not be said any final decree had been rendered in the cause. The order made by the court touching separate maintenance for complainant was interlocutory, and the law is well settled no appeal will lie from an interlocutory order or decree made in the progress of a cause, either at law or in equity. Gage v. Eich, 56 Ill. 297.

As the Appellate Court had no jurisdiction to hear defendant’s appeal, it follows the judgment rendered against complainant for costs was erroneous, and its judgment must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.