Thelin v. Thelin

Wilson, J. The affidavit submitted by the defendant on his motion to set aside the default and decree, presented a meritorious defense, and showed that his failure to appear and interpose his defense was not the result of negligence on his part, but was caused by artifice and bad faith on the part of the complainant. There had been a condonation of the offenses charged in the bill, and the parties had resumed conjugal relations prior to the decree, under a written stipulation signed by the complainant that the bill should be dismissed. In violation of this stipulation, and while the defendant was confined at home by sickness, the complainant, without any intimation’to him of her intention to proceed further with the suit, caused a decree of divorce to be rendered, the first knowledge of which came to the defendant through his attorney. He thereupon, with due diligence, and at the same term of the court, entered his motion, supported by affidavit of the facts asking to have the decree set aside. The motion should have been granted. In proceedings for a divorce, condonation is an absolute bar to a'remedy.for the offenses condoned, and restores the offending paiiy to the same condition he occupied before the offense was committed. 2 Bishop Mar. and Div. 84. The counter-affidavits offered by the complainant on the hearing of the motion to set aside the decree, were improperly admitted. Such motions should be determined on ex parte affidavits. The practice of receiving counter-affidavits on the hearing of motions to set aside defaults, has bee n characterized by our Supreme Court as a vicious one. Courts are liable to do injustice to parties in thus trying a case on affidavits where there is no opportunity for cross-examination of the witnesses. Mendall v. Kimball, 85 Ill. 582. The counter-affidavits and oral testimony received tended to show that subsequently to the condonation the defendant had renewed his acts of cruelty. If this were shown, the complainant could only have availed herself of it as a ground of relief by a supplemental bill, and not under her original bill; for in respect to the causes alleged in . the original bill, they had been extinguished by the condonation. This principle is elementary, and requires the citation of no authorities. As the defendant’s affidavit showed upon its face a meritorious defense, and that he had not been guilty of any negligence in asserting it, we are of the opinion that the court erred in not setting aside the default and decree. The decree is therefore reversed, and cause is remanded to the Superior Court, with directions to vacate the decree and set aside the default, and for such further proceedings as the case may require. Reversed and remanded.