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Opinion of the Court.

was then, and had been, pecuniarily unable to comply with the decree of the court for the payment of the several sums of money specified, and secondly, for a modification of the decree allowing alimony, that the installments to be paid might be so reduced that he could thereafter pay them. Both motions were based upon affidavits, in which were given, in detail, the facts relied upon in support of the motions. Counter affidavits having been presented and considered, the court overruled both motions, and ordered defendant to pay instanter the amount due under the original decree, and, in default of such payment, he be remanded to the custody of the sheriff, to be safely kept until he should comply with the order or be otherwise discharged.

Under our statute, there are several modes in which decrees in chancery may be executed or enforced. Where there shall be no direction that a master in chancery or commissioner execute a decree, the same may be carried into effect by execution or other final process, according to the nature of the case, or the court may, if necessary, direct an attachment to be issued against the party disobeying such decree, and may fine or imprison him, or both, in the discretion of the court, and may also direct a sequestration for disobedience to any decree. R. S. 1874, p. 203, sec. 47. In divorce cases, the court is authorized to require the husthe wife such sums of money as may

enable her to prosecute or defend the suit, and, where it is just and equitable, may allow her alimony pending the litigation, and may enforce the payment in any “manner consistent with the rules and practice of the court.” R. S. 1874, p. 421, secs. 15, 18.

It is apprehended that decrees for alimony may be enforced by execution or other final process, as other decrees in chancery, or in any other mode consistent with the practice in the courts of chancery; but, as cumulative remedies, no doubt, the court may enforce decrees for alimony “either by sequestration of real or personal estate, by attachment against the person,

band to pay

Opinion of the Court.

by fine or imprisonment, or both, in the discretion of the court,” as other decrees in chancery may be enforced.

That courts possess power to commit as for contempt, to compel obedience to decrees for the payment of alimony, has been recognized by this court in a number of cases. Buck v. Buck, 60 Ill. 105.; OʻCallaghan v. O'Callaghan, 69 ib. 552; Dinet v. Eigenmann, Admr. post, p. 274. In Buck v. Buck, the court committed defendant for disobedience to a decree for alimony and maintenance, and its action was affirmed on appeal.

While this extraordinary power is conceded to rest in the courts, it is nevertheless subject to this limitation, imposed by the constitution, that a party may not be imprisoned except in cases where it shall appear he has the pecuniary ability to enable him to comply with the decree, and his disobedience is willful.

In O’Callaghan v. OʻCallaghan, it was said, “the court is empowered to punish willful obstinacy, in such cases, by imprisonment, but we think the spirit of our constitution forbids that the pecuniary inability of the party, not resulting from his fraudulent conduct to produce that condition, can not be punished as a contempt by imprisonment.”

Where the neglect or refusal to perform the decree is not from mere contumacy, but from the want of means, the result of misfortune, not induced by any fraudulent conduct on the part of defendant, the party will be compelled to adopt some mode other than imprisonment, to enforce the decree, consistent with the practice in the courts, either by execution or other final process, or by sequestration of real or personal estate, or by the exercise of such other powers as pertain to courts of chancery, and which may be necessary to the attainment of justice. It is not perceived in what respect decrees for alimony differ from other decrees for the payment of money. Imprisonment for non-compliance therewith, unless willful, or unless upon a refusal of defendant, upon proper demand made, to deliver up his estate in satisfaction of the decree, is within the inhibition of the constitution against imprisonment for debt.

Syllabus.

The case at bar comes within the rule declared. It appears, from the affidavits in the record, defendant's refusal to comply with the decree of the court for alimony was not willful, but resulted solely from his pecuniary inability, and that, under our former decisions, was sufficient to entitle him to be discharged from arrest. Detailed statements of defendant's financial condition were given, from which it appears he had no means and no income from which he could discharge the decree. This condition was not the result of any fraudulent conduct on his part, but was produced by misfortunes in commercial transactions. There is nothing in the record that disproves or even contradicts defendant's account of his financial condition. It must, therefore, be regarded as a fair and candid exposition of his monetary affairs.

Defendant discloses that he has real estate, and perhaps personal property, but it is all heavily incumbered. A full exhibit of all his property, real and personal, is made, that it may be subjected to the payment of alimony, under the decree, in any manner known to the law or consistent with the practice in the courts. This is all he can do, and, having offered to surrender his property, such as he has, he is entitled to be discharged from arrest.

The judgment will be reversed, and the cause remanded with direction to the court to enter an order discharging defendant.

Judgment reversed.

80 15 23a 403

OLE ANDERSON

80 15 29a 375 80 15 46a 262

V.

HANNIBAL P. Wood, Supervisor, etc., et al.

1. ROAD AND BRIDGE LAW-construction of sections 69 to 77 inclusive. A fair interpretation of sections 69 to 77 inclusive, of chapter 121 of Revised Statutes of 1874, warrants including a prayer for a new road and for vacating an old road in the same petition.

Opinion of the Court.

2. The commissioners of highways met on the day named in the notice, and went upon and viewed the line of a proposed road, and afterwards, and on the same day, announced publicly that they would not order the road to be established, which decision was not committed to writing until two days afterwards, when it was filed in the office of the town clerk: Held, that this was a substantial compliance with section 73 of the Road and Bridge Law of 1874.

3. SAME-appeal from decision of highway commissioners in refusing to lay out a road. Where an appeal is taken from the decision of commissioners of highways refusing to establish a road, to three supervisors, if the commissioners of highways and two of the petitioners appear before the supervisors on the day fixed by them, any informality there may be in the notice is waived, and if a postponement of the action of the supervisors is then and there had to a future day by common consent, it is regular.

4. APPEAL TO SUPERVISORS—appearance of parties at an adjourned meet. ing cures irregularity in the adjournment. Where the supervisors, to whom an appeal has been taken from the decision of the commissioners of high. ways, meet with the commissioners and two of the petitioners at a time and place fixed by the supervisors, and, by common consent, their action is postponed to another time, when they meet again, and the supervisors render their decision, the last meeting cures any irregularity there may have been in the adjournment of the first.

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. Douglas & HARVEY, for the appellant.

Mr. R. C. Hunt, for the appellees.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was a proceeding on the equity side of the circuit court of Knox county, by bill exhibited by Hannibal P. Wood, supervisor of the town of Sparta, in that county, jointly with James M. Holyoke and William Robison, as residents and tax-payers in that township, setting forth various proceedings to lay out a road and vacate a road, and in which damages were claimed, alleging that the same were illegal, and praying that the payment of damages be enjoined and also the laying out and vacating the road, and that the injunction may be made perpetual.

Opinion of the Court.

Ole Anderson, on his motion, as a party interested, was made a defendant to the bill, and having answered the same in detail, averring the legality of the proceedings, moved for a dissolution of the injunction, which was denied, and, on final hearing, the injunction was made perpetual as prayed.

To reverse this decree, the defendant, Anderson, appeals. The errors he has assigned present the merits of the controversy, and we have duly considered them.

The road sought to be laid out is described as commencing at the south-east corner of section twenty-four (24) in the town of Sparta, running thence north eighty (80) rods, thence west one hundred and sixty (160) rods, thence north on the half section line to the centre of section thirteen (13) in the same town. The road proposed to be vacated is described as “a road known as the Lime Kiln road, commencing at the same south-east corner of section 24, and running northwesterly across said section to the south-west corner of the north-west quarter of the north-west quarter of said section twenty-four (24)."

It is unnecessary to specify the proceedings complained of, which were made the basis of the injunction, as the merits can be understood and disposed of in the consideration of two only, and which are the most important.

These proceedings were had under the act of April 11, 1873, entitled, "An act in regard to roads and bridges in counties under township organization,” containing one hundred and twenty-seven sections. R. S. 1874, ch. 121, p. 912.

Their validity, by which the new road was laid out, and thic “ Lime Kiln road” vacated, must be tested by this act.

We have examined these proceedings with the statute before us, and do not discover any substantial departure from its various provisions, in regard to laying out one road and vacating another.

Some comment is made that this petition prayed for a new road, and vacating an old one, and it is suggested these objects can not be comprehended in the same petition. A fair interpretation of sections sixty-nine to seventy-seven, inclusive,

2-80TU ILL..

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