dissenting:
I do not concur in the reasoning or conclusion of the foregoing opinion. Our statute provides that the court in which divorce proceedings are instituted may make orders, pending such proceedings, as to the custody of the children, and if a decree of divorce is granted, make such further orders as to their care and custody, from time to time, as their interests may require. In Cowles v. Cowles, 3 Gilm. 435, this court long ago said (p. 438) : “It becomes clear, then, that our legislature, by providing that ‘when a divorce shall be decreed it shall and may be lawful for the court to make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just,’ has conferred no new authority or jurisdiction upon the court. It was by its original jurisdiction clothed with the same powers before. The cases provided for in this statute are necessarily embraced in that broad and comprehensive jurisdiction with which the court of chancery is vested, over the persons .and estates of infants and their parents who are bound for their maintenance.” It is the well settled law in this jurisdiction that a court of chancery is vested with “broad and comprehensive jurisdiction” over the persons and estates of all minors within the limits of its jurisdiction. Hartmann v. Hartmann, 59 Ill. 103; Wilkinson v. Deming, 80 id. 342; Dodge v. Cole, 97 id. 338; In re Ferrier, 103 id. 367; Ames v. Ames, 148 id. 321; VanMatre v. Sankey, 148 id. 536; 3 Pomeroy’s Eq. sec. 1303.
It is insisted that the cross-bill is not germane to the matters raised by the original bill. The custody of the minor children was necessarily comprehended within the scope of the original bill, although they were not mentioned therein. (Snover v. Snover, 10 N. J. Eq. 261.) Under our statute it would seem that upon the filing of the bill herein the minor children of the marriage became, in a sense, wards of the court, and hence any suggestions as to their custody, in a cross-bill, would be germane and relevant. If it becomes necessary to grant affirmative relief in order to dispose of the matters in controversy and do complete justice between the parties, a cross-bill may be filed, in which such relief may be granted and circuity of action avoided. (Longshore v. Longshore, 200 Ill. 470.) It is a familar rule that when a court of equity acquires juisdiction for one purpose it will retain it for all purposes, in order to do full and complete justice between all the parties. (Wehrheim v. Smith, 226 Ill. 346; King v. King, 215 id. 100.) Equity abhors a multiplicity of suits. (Morrison v. Morrison, 140 Ill. 560.) Suits for divorce based upon purely statutory grounds are of an equitable nature, and subject to the rules and maxims of courts of equity rather than those of the English ecclesiastical courts. The fact that the legislature gave the power, in such cases, to the chancery courts of this State rather than to courts of law supports this view. “The equitable nature of the suit being established and it being brought in a court of equity, it should be dealt with upon the same equitable principles as other suits founded upon ordinary equities.” (Rooney v. Rooney, 54 N. J. Eq. 231.) It is not necessary for children to be brought personally into court in order to give jurisdiction over them in these proceedings. (Power v. Power, 65 N. J. Eq. 93.) The court in the case last cited held that the writ of habeas corpus was entirely out of place when divorce proceedings are started in order to decide as to the custody of minor children and that the cross-petition upon that question was germane in divorce proceedings, the chancellor saying (p. 101) : “I think, under the practice of New Jersey adopted in these cases, that it was perfectly germane to the petition of the wife for the husband to set up this kind of a petition, so as to get affirmative relief against her negative relief. Without that he would only have got negative relief, but with that cross-petition he is entitled to affirmative relief. It is germane to the suit, just as germane as a cross-petition for divorce would be.”
The precise question here raised has never been passed on by this court. It 'is plain from the majority opinion that there are authorities that uphold its conclusion. Under the varying statutes and systems of procedure the courts have not all agreed on this question. But where, as in this State, the court having jurisdiction of divorces has also general chancery jurisdiction, in my judgment it would be not only for the best interests of the minor children, but in accord with sound public policy, for the court to retain jurisdiction in this proceeding for the purpose of making any orders as to the welfare of the children that justice may require. Unless prohibited by statute or well settled principles of law, a court of equity has always the power to do that which justice in a case requires. The chancellor in the superior court does not cease to be such because he sits to hear divorce cases. The statute regulating these proceedings does not purport to define fully the authority of the court. It commits thereto, subject to certain specific limitations, jurisdiction in all matters incidental to divorce. This statute is highly remedial and ought not to be strictly construed against the interests of the minors. A learned author has stated that while it may be necessary, in order to give a court of equity jurisdiction over infants, to have them made wards of the court, a suit was not necessary to that end; that any proceeding in or application to a court of chancery relating directly to the infant was sufficient. (3 Pomeroy’s Eq. sec. 1305, note 1.) While the divorce proceedings were pending in the superior court, no other court, by habeas corpus or otherwise, could interfere with its custody of the children. (In re Morgan, 117 Mo. 249.) Certainly the chancery court had jurisdiction in respect to the subject matter of its decree. The only doubtful question is whether it obtained such jurisdiction regularly. There being no settled practice in this State to the contrary, it appears to me most unwise to turn the parties out of court and invite them to come again into the same court for the same relief now sought. The parties being before a court of equity, what more proper time can there be to adjudicate the rights of the parents to the custody of the children ? (2 Nelson on Divorce and Separation, p. 979.)
The court having acquired jurisdiction of the subject matter and the parties to the suit at the instance and by the prayer of plaintiff in error, I cannot reach any other conclusion than that, on the plainest principles of equity, she should be precluded from questioning the jurisdiction of the court which she herself has invoked.