dissenting in part.
In my opinion the decree appealed from should he affirmed. Plaintiff filed his complaint alleging that the marriage entered into between him and defendant was caused by fraud and duress on the part of defendant, she representing that he was the father of the child with which she was pregnant. She denied the charge and alleged facts, which if true, would show that his claim was wholly without merit. The court heard the evidence and entered a decree in which it was found that the marriage entered into between the parties is a “good and legal marriage; that the same remains in full legal force and effect and that Clarence John Arndt and Margaret Haas Arndt are husband and wife.” That the “child is the child of the said Clarence John Arndt and the said Margaret Haas Arndt.” And it was decreed that the complaint be dismissed for want of equity. The decree, as stated in the foregoing opinion, was, on petition of plaintiff, vacated and set aside and a new decree entered eliminating the finding in the former decree, that the child was the child of plaintiff and defendant.
The complaint was filed September 13,1944, in which plaintiff alleged that he and defendant had intimate relations on April 13, 1943, and that the next day he went back to military service in Mississippi and did not, after that time, have carnal knowledge of her; that in July, 1943, she told him she was pregnant. Defendant filed her answer October 13, 1944, in which she admits the illicit relations on April 13, 1943, while he was on furlough and avers that plaintiff often, on week-end passes, came to Chicago up to June 13, 1943, and that he was in Chicago and visited her on Father’s Day, which was June 13,1943. Plaintiff filed his reply to the answer denying that he came to Chicago on week-ends up to and including June 13, and further denied that he visited defendant on Father’s Day in June, which he avers “was on the 20th day of that month or on June 13th, 1943. ’ ’
As stated in the opinion, the original decree was entered January 9, 1946, and it was not until February 7, thereafter, that plaintiff filed his petition to vacate the decree so as to permit him to take depositions of witnesses who lived in Mississippi and with whom he had there visited on June 13 and 20, 1943. It seems to me this was a rather late date to attempt to take depositions when he had been advised by defendant in her answer which was filed October 13,1944, (nearly 14 months before) that he had been in Chicago June 13, 1943, and there is nothing in his petition to show that he was taken by surprise, nor could there be, nor is any excuse made for the delay.
The record further discloses that both parties lived in Chicago and had been keeping company for 7 or 8 years. The chancellor saw and heard the witnesses testify but plaintiff has not preserved the evidence in the record before us. I am clearly of opinion there is no merit in plaintiff’s contention that the marriage was brought about through fraud or duress of defendant; that the court properly found the marriage was valid, that the child was the child of the parties; and that the complaint be dismissed for want of equity.
I agree with the result reached in the foregoing opinion as to the allowance of solicitors’ fees and in addition to the authorities cited in the opinion, I call attention to Cowls v. Cowls, 8 Ill. (3 Gillman) 435, in which it was held that where a wife had obtained a divorce from her husband and no provision was made in the decree for the custody and maintenance of the children who were with their father, the mother and former wife could afterward maintain an independent bill in chancery for the custody and support of the children. In that case Judge Catoh, in delivering the opinion of the court said: ‘1 The power of the court of chancery to interfere with and control, not only the estates but the persons and custody of all minors within the limits of its jurisdiction, is of very ancient origin, and cannot now be questioned.” The court there quoted from 2 Story’s Eq. Jur. sec. 1341, and continuing said:
“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.” See also Darnell v. Darnell, 212 Ill. App. 601 where the Cowls case is considered.