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........ 592 Toledo, St. L. & W. R. R. ads. People ex rel. (Farmer, J.).. 142 Toledo, St. L. & W. R. R. ads. Pub. Util. Com. (Cooke, J.). 93 Townsend v. Gash. (Watson, J.)......................... 578 Trego v. Estate of Cunningham. (Cartwright, C. J.)....... 367
v Vietor v. Lesher. (Farmer, J.)...... Volunteers of America v. Peirce. (Farmer, J.)............ 406
W Wabash R. R. ads. People ex rel. (Cartwright, C. J.)...... 30 Waggoner v. Saether. (Craig, J.)........... Warner v. King. (Carter, J.)............... Weller ads. Lorenz. (Cooke, J.)......
230 Wheeler v. Chicago & Western Indiana R. R. (Craig, J.).. 306 Wing v. Little. (Vickers, J.).....
.................... 20 Wood ads. Dickerhoof. (Craig, J.).......
ARGUED AND DETERMINED
SUPREME COURT OF ILLINOIS.
THE AMERICAN WOOLEN COMPANY et al. Defendants in
Error, vs. Jacob H. LESHER et al.—(BELLE LESHER,
Opinion filed February 17, 1915.
1. SEPARATE MAINTENANCE-decree in separate maintenance is not binding upon strangers to it. The primary object of a separate maintenance suit is to obtain support for a wife living apart from her husband, and while the complainant must necessarily prove her marriage, yet the establishment of the marriage status is but an incidental issue, and the decree, while binding upon the parties, does not have the force of a decree in rem, and is not admissible in evidence, as against strangers to the separate maintenance suit, to establish the fact of the marriage.
2. LIS PENDENS—When doctrine of lis pendens does not apply. The fact that a bill for separate maintenance was filed before the execution by the defendant of trust deeds upon his real estate does not authorize the application of the doctrine of lis pendens, where the bill, though it alleged that the defendant owned real estate in certain localities mentioned, did not describe the particular land upon which the deeds were given nor assert any claim or right in any specific parcel nor ask that any of the land be set off to the complainant.
Writ of ERROR to the Branch “B” Appellate Court for the First District;heard in that court on writ of error to the Superior Court of Cook county; the Hon. WILLIAM E. DEVER, Judge, presiding.
ALBERT H. Fry, for plaintiff in error.
Moses, ROSENTHAL & KENNEDY, and WHITMAN & MILLER, (WALTER Bachrach, of counsel,) for defendants. in error.
Mr. Justice Farmer delivered the opinion of the court:
These cases come to this court upon writs of certiorari issued to review the judgments of the Appellate Court for the First District affirming decrees of the superior court of Cook,county foreclosing two trust deeds describing different real estate and both executed by Jacob H. Lesher. In one of the foreclosure proceedings the American Woolen Company of New York et al. were complainants, and in the other George F. Vietor et al. were complainants. The plaintiff in error was a defendant to the bills in both cases by the name of Belle Scramlin, alias Belle Lesher. The bills allege she claimed some interest in the premises, but that whatever interest she might have was subordinate to and subject to the liens of the trust deeds. May Charter Lesher was also made a defendant to both bills as the wife of Jacob H. Lesher. As the questions involved in both cases are precisely the same they were consolidated for hearing and will be disposed of in one opinion.
Plaintiff in error answered the bills, denying that May Charter Lesher was the wife of Jacob H. Lesher or ever had been, and alleged she, Belle Lesher, is the true and lawful wife of Jacob H. Lesher, and while neither admitting nor denying the execution of the trust deeds by Jacob H. Lesher, the answer averred that if any such conveyances were made they were subject to the dower right of plaintiff
in error as the lawful wife of Jacob H. Lesher, she never having joined in such conveyances. The causes were referred to a master in chancery to take the testimony and report the same, together with his conclusions of law and fact. On the hearing before the master plaintiff in error offered in evidence and relied upon a decree of the circuit court of Cook county rendered July 15, 1911, in a separate maintenance suit, in favor of plaintiff in error, as complainant, against Jacob H. Lesher, as defendant. In that suit plaintiff in error filed a bill against Jacob H. Lesher for separate maintenance, in which she alleged she was his wife, that her husband was living separate and apart from her without her fault, and was then living in adultery with another woman. The bill alleged that the defendant was the owner of real estate, none of which was particularly described, and prayed that a decree be entered against him requiring him to pay such sum for the support and maintenance of plaintiff in error as to the court should seem meet. Jacob H. Lesher answered the bill in that case, denying he was the husband of plaintiff in error or that he ever had been married to her, and alleged he was the husband of May Charter Lesher, with whom he was then living. A hearing in the circuit court resulted in the defeat of plaintiff in error and a dismissal of her bill for want of equity. The case went through the Appellate Court and this court. (Lesher v. Lesher, 159 Ill. App. 432; Lesher v. Lesher, 250 Ill. 382.) While the appeal was pending in the Appellate Court a confession of errors and a stipulation that the decree be reversed was filed in the Appellate Court by Jacob H. Lesher. The Appellate Court affirmed the decree and the case was brought to this court by writ of certiorari, resulting in a reversal of the judgment of the Appellate Court and the decree of the circuit court and a remanding of the case to the circuit court. On the second trial in the circuit court plaintiff in error was successful and obtained a decree awarding her separate maintenance