Bernero v. Bernero , 363 Ill. 328 ( 1936 )


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  • This case presents a new question of procedure, arising under the Civil Practice act, which in my judgment is not adequately treated either in the foregoing opinion or in the opinion of the Appellate Court.

    In affirming the judgment of the lower court, the Appellate Court did not deny the right of intervention, but based its refusal to allow it in this case largely upon the fact that the application to intervene came after judgment was entered and was thus too late. The action is governed by the provisions of the Civil Practice act, section 26 of which provides: "No action shall be defeated by nonjoinder or mis-joinder of parties, new parties may be added and parties mis-joined may be dropped by order of the court, at any stage of the cause, before or after judgment, *Page 333 as the ends of justice may require." This provision is identical with the New York Civil Practice act, section 192, and substantially the same rule as is employed in New Jersey and Michigan. It is apparent that under this section, if any right to intervene existed in appellant at any stage of the cause, it could not be denied that right simply because judgment had previously been entered. The decree was entered February 7, 1934, and the petition for leave to intervene was filed March 1, 1934. The application to intervene was therefore made in apt time, being within thirty days after entry of judgment, as required by the Civil Practice act. (Smith's Stat. 1935, par. 174, p. 2430.) So far as the time element is concerned, the same rules and reasons now apply as formerly applied to motions made during the same term at which the decree was entered. Grubb v. Milan, 249 Ill. 456; Donaldson v.Copeland, 201 id. 540.

    Section 24 Of the Civil Practice act provides that "it shall not be necessary that each defendant shall be interested as to all the relief prayed for," in order to be joined as a defendant. Under this section plaintiff could properly have joined appellant as a defendant to the action, for while it was not a necessary party to the divorce proceedings it nevertheless became a proper party when a judgment was entered which, in effect, created a liability against its pension fund. Whether appellant was joined as a party defendant under Section 24, or sought to intervene as a party defendant under section 25 next discussed, the same rule would apply — i. e., that it need not be interested in all the relief prayed for to be a proper party defendant. This has always been the rule in chancery practice in this State.

    Section 25 of the act provides, in part, that "where a person, not a party, has an interest or title which the judgment may affect, the court, on application, shall direct him to be made a party." The affidavit in support of the application for leave to intervene recited that the filing of *Page 334 the bill for review was solely to enable Mabel Bernero to obtain a pension from the firemen's pension fund as the alleged widow of John D. Bernero. It asserted that she had actual notice not only of the divorce proceeding against her but also of the subsequent marriage of John D. Bernero in 1927 — six years before her bill was filed. It can not be denied that appellant was financially interested in the decree which set aside the divorce proceedings and gave Mabel Bernero, who had deserted her husband twenty years earlier, an opportunity to secure a pension as his post mortem widow. This proceeding was so unusual, and the affidavit filed in support of the motion was so conclusive of appellant's interest, that leave to intervene should have been granted, even without reference to section 25 of the Civil Practice act. The trial court still had jurisdiction and control over the cause and its denial of appellant's application to intervene, made in apt time, was contrary not only to the express provisions of section 25, but also a denial of substantial right and justice between the parties. The suit was in equity, and in addition to the right to intervene under the statute, it was highly desirable that the court should seek to do complete justice in the one proceeding. The right to intervene under section 25 cannot be considered absolute since discretion should be exercised by the trial court to prevent the filing of applications where it appears they are made largely for purposes of vexation and delay, yet in this case the denial was contrary to one of the avowed purposes of the Civil Practice act — the expedition of justice.

    The judgment of the Appellate Court also failed to consider an even more serious error on the part of the trial court — i. e., its jurisdiction to enter the decree vacating a previous divorce decree after the death of one of the parties. No alimony or property rights, real or personal, were mentioned or adjudicated in the decree for divorce, or in the bill for review thereof. By our statute on abatement *Page 335 it is provided that certain actions shall survive the death of plaintiff or defendant, but divorce is not referred to in any way therein. There are no elements in an action for a divorce which, on the death of either plaintiff or defendant before final decree, could survive to any heir, devisee, executor or administrator of such decedent. The test as to whether a cause of action survives upon the death of a defendant is whether the action is such as may be brought originally against his representatives, or if there are remaining defendants, whether or not it survives against them. (Olson v. Scully, 296 Ill. 418. ) This court has stated that where a right of action is so entirely personal that a person, by contract, cannot assign it or place it beyond his control, the action will not survive. (People v. Western Life Indemnity Co. 261 Ill. 513; Selden v.Illinois Trust and Savings Bank, 239 id. 67.) The right to dissolve a marriage by divorce is such an action. The death of John D. Bernero wholly eliminated the matter in controversy adjudicated by the decree for divorce, so far as it related to the status of the parties and independent of any property rights then existing. Here no alimony or support money was provided and no property rights reserved or adjudicated in the decree. Under such circumstances, the right to set aside a decree for divorce does not survive the death of one of the parties to the marriage relation. In so far as the dissolution of the marriage is concerned, it is nothing but a personal action. It is obvious that an action for divorce proper does not survive the death of one of the spouses. (1 Rawle C. L. p. 16;Masterson v. Ogden, 139 Pac. (Wash.) 654.) It is equally obvious that after the death of one of the parties no court can revive the action and set aside the decree previously entered and re-instate the survivor as the surviving husband or widow of the deceased, as was done in this case. The half-brothers and half-sisters of John D. Bernero, who were made sole parties defendant to the bill for review, had no interest whatever *Page 336 in the divorce proceeding. The married or divorced status of the parties was not assignable and could not pass to the heirs of either party by inheritance or descent. It has been frequently held in this State that a cause of action created by statute does not survive, unless declared so to do by the statute itself, or unless provision is made for its survival by some other statute. Selden v. Illinois Trust and Savings Bank,supra; People v. Western Life Indemnity Co. supra; Wilcox v.Bierd, 330 Ill. 571; Olson v. Scully, supra; People v.Taylor, 342 Ill. 88.

    For these reasons I believe the trial court was entirely without jurisdiction to entertain the bill for review and without jurisdiction to enter the decree setting aside the decree for divorce.

Document Info

Docket Number: No. 23312. Judgment affirmed.

Citation Numbers: 2 N.E.2d 317, 363 Ill. 328

Judges: Mr. JUSTICE SHAW delivered the opinion of the court:

Filed Date: 4/24/1936

Precedential Status: Precedential

Modified Date: 1/12/2023