The decree appealed from was entered upon a hill in the nature of a bill of review, filed to set aside a former decree of divorce obtained by the appellant against the appellee.
The appellee, to sustain the present decree, relies upon two grounds: First, that there was no service of process upon her in the first suit; second, fraud by the appellant in representing to her that the suit would not he prosecuted, on which representation she relied.
As to the first ground, it is sufficient to say that the original summons is lost from the files of the former suit; that the record there recites personal service “according to the statute in such case made and provided;” and that the proof in this case shows that in fact it was served, by delivering a copy of it at the usual place of abode of the appellee, with a person of the family above the age of ten years. . True, that person says now, that the deputy sheriff said nothing when he left the paper; yet she knew it was a summons in the case of her father against her mother.
It clearly appears that the appellee knew the fact, before the decree, that the suit was pending. Under such circumstances the return upon the summons, which from the recital in the record must be taken to have been in proper form to show a good service, can not he impeached.
In Brown v. Brown, 59 Ill. 315, the contradiction of the return was on the day after a default on an application to be let in to defend. The principle of Davis v. Dresback, 81 Ill. 393, applies, for subsequent rights have intervened; by the remarriage of the appellant and birth of children. But such subsequent rights are not a bar to relief of the appellee, if the former decree was obtained by fraud of a character that prevented her from attempting a defense in the original suit. Caswell v. Caswell, 120 Ill. 377.
How as to that fraud, we might have been as well satisfied if the Superior Court had found that it was not proved.
A perusal of the testimony of the principal witnesses, children of the parties, leaves the impression that while the divorce suit was pending, their sympathies were with the father; since he has again married, they are against him. The alleged fraud consists, as she says, and he denies, in his telling her while the suit was pending, in effect, that he would not prosecute it, and that they could live together as well as ever. In the nature of things, there can be no corroboration of his denial, and in corroboration of her statement, there is the fact, if it be a fact, that they occupied the same bed while the suit was pending, as testified to by some of the children, except during intervals that the appellee was -confined in reformatory institutions, to which it is charged he caused her to be sent without cause.
As the testimony of the witnesses on her behalf is read, they seem very reckless, but the court below saw them, and perhaps there was better reason to rely upon their statements than appears here.
From all the evidence that court has found that the parties lived together as husband and wife after the commencement of the divorce suit, and that he led her to believe that the suit would not be prosecuted, and that he did not intend to procure a decree of divorce from her.
The presumption is that the Superior Court, with better opportunities than this court has, determined rightly, and properly set aside the decree of divorce.
The decree appealed from is affirmed.
Decree affirmed.