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Peck v. Peck

OPINION FILED MARCH 20, 1959.

SHIRLEY J. PECK, APPELLANT,

v.

PAUL N. PECK ET AL. — (PAUL N. PECK, APPELLEE,

v.

SHIRLEY J. PECK, APPELLANT.)



APPEAL from the Circuit Court of Knox County; the Hon. WM. M. BARDENS, Judge, presiding.

MR. CHIEF JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:

Shirley J. Peck and Paul N. Peck have filed an appeal and cross appeal respectively, from a decree of the circuit court of Knox County which adjudicated their marital status, fixed the custody of a child, and determined certain property rights between them. A freehold is involved so as to give us jurisdiction of a direct appeal.

Pertinent factual background shows that the Pecks were married in March, 1950, and that one child was born to such union. Paul, who was the owner and operator of a drive-in restaurant, had previously been married to one Betty Peck, from whom he was divorced in 1948, and had custody of a son born of that marriage. Shirley Peck was a waitress in the restaurant and continued her employment there after the marriage. A rift developed between the couple in 1952 when Paul filed a complaint for divorce charging adultery and Shirley filed a counterclaim charging cruelty, but they became reconciled and the causes of action were dismissed early in 1953. At the time of the marriage Paul was the owner of lots 255 and 258 in Prospect Heights Addition to the city of Galesburg, the first being improved with a residence in which the couple made their home and the second with a portion of the drive-in restaurant. Subsequent to the marriage, title to lots 256, 257 and 212 was acquired in the name of Paul alone, while title to lots 213 and 214 was acquired in the names of Paul and Shirley as joint tenants. Lots 213 and 214 are vacant, while lots 256, 257 and 212 are being used in conjunction with the restaurant. In the fall of 1953 Paul and Shirley consulted an attorney concerning the property and, shortly thereafter, deeds were executed which made them joint tenants of all seven lots. At the same time Paul and Shirley executed separate wills. The will of Paul left his property to Shirley at his death, but in the event both died in a common disaster, his estate was left in trust for his children. The will of Shirley, on the other hand, left her entire estate to Paul but in the event of simultaneous death her entire estate was left in trust for the benefit of her child.

Paul and Shirley continued to work and live together until June 14, 1956, when Shirley left taking her clothing and their child. Both agree that she left after a quarrel, but whether she was ordered to do so or left of her own accord is a point in conflict. Six weeks later Paul took the child off the street a short distance from where Shirley was residing with an aunt and, although he thereafter kept the child in his custody, it was his testimony, categorically denied by Shirley, that he informed her she could arrange to visit the child at any time.

Six weeks after the separation, on July 31, 1956, Shirley, alleging ownership of an undivided one-half interest, filed a complaint for partition of the seven lots heretofore described. Paul filed an answer in which he admitted the conveyance to Shirley, but denied her right to partition, and alleged by way of counterclaim that Shirley held her title in trust for him by reason of the fact the conveyance had been for the sole purpose of protecting his title from Betty Peck, Paul's first wife, in the event Paul should die and Betty be named as guardian for the minor son born to their marriage. Shirley denied the latter averments. On September 14, 1956, Paul filed a motion for leave to file an amendment to his answer and counterclaim and for leave to file a counterclaim for divorce. When Shirley resisted the motion, alleging among other things that the "sixty-day" provision of the Divorce Act had not been complied with, the chancellor, on September 24, 1956, denied leave to file a counterclaim for divorce but did permit Paul to amend the answer and counterclaim already filed. The latter amendment charged Shirley with fraud, alleging in substance that the conveyance to her had been made after the divorce action of 1952 had been dismissed in contemplation that she would refrain from her adulterous conduct and resume her marital duties, but that she had in fact continued her adulterous conduct with certain persons on certain dates after the conveyance had been made to her. Shirley's reply likewise denied these allegations.

On November 8, 1956, as the result of a motion by Shirley, the partition action was referred to a master to hear and report the evidence together with his findings and conclusions thereon. Evidence was taken in the months of March, April and May, 1957, and while it is Shirley's contention that the proof was completed on May 15, 1957, she concedes and the record shows that the proof was not closed. It should be noted at this time also that the master, over Shirley's objections, heard evidence of her adulterous conduct during the hearing on the partition suit.

Paul N. Peck, as plaintiff, filed a praecipe for summons under the Divorce Act on September 24, 1956, an action which apparently followed his unsuccessful efforts to file a counterclaim for divorce in the partition suit. Shirley Peck was served and entered her appearance on September 26, 1956. Sixty days following the praecipe, on November 24, 1956, Paul filed a complaint for a divorce and custody of the child, in which he pleaded charges of adultery against Shirley which paralleled the charges of adultery forming the basis of his claim of fraud in the partition suit. On May 13, 1957, after a motion to strike the complaint for a divorce had been denied, Shirley filed an answer and a counterclaim to the divorce action wherein she sought a divorce on the grounds of cruelty. Additionally, she claimed and sought a dissolution of a partnership in the drive-in restaurant, prayed for an accounting of the profits of the partnership, for the appointment of a receiver over the partnership assets, for custody and support of the child, and for alimony, costs and attorney fees. Thereafter, on May 17, 1957, Paul filed a motion to consolidate the two causes of action and such motion was allowed on June 3, 1957. By an accompanying order the chancellor referred the cause, as consolidated, to the same master and ordered that evidence theretofore taken in the partition suit be considered as having been taken in the consolidated cause.

Hearings on the consolidated cause commenced on June 18, 1957, and were concluded on June 20, 1957. During this period Paul offered no further evidence of adultery other than that already received in the partition suit and the bulk of the testimony related to Shirley's counterclaim for a divorce and to her claim of a partnership. Subsequently, in the consolidated cause, the master found that Paul was entitled to a divorce and custody of the minor child; that Shirley and Paul each owned an undivided one-half interest in the real estate and that partition should be granted; that Paul was entitled to an estate of homestead; and that Shirley had no right, title or interest in the restaurant business. After objections and exceptions of both parties had been disposed of, the chancellor entered a decree substantially in conformity with the master's findings, the one exception being that he did not order partition of the real estate. Instead, the decree found that a great loss and hardship to Paul would result from a public sale of the premises, and directed that a determination of the fair market value, mortgages, liens and other indebtedness should be made and that Paul should pay to Shirley one-half the market value after the deduction of all liens, mortgages, other indebtedness and homestead. Concluding, the decree provided that if Paul did not make such payment within ten days after the value was determined, the real estate should be sold "as in partition." Both parties have appealed from the aspects of the decree unfavorable to them and, for convenience, we shall hereinafter refer to Shirley J. Peck as appellant and to Paul N. Peck as appellee.

The first contention raised by appellant is that the chancellor erred in permitting the partition and divorce actions to be consolidated. Section 51 of the Civil Practice Act provides: "An action may be severed, and actions pending in the same court may be consolidated, as an aid to convenience, whenever it can be done without prejudice to a substantial right." (Ill. Rev. Stat. 1955, chap. 110, par. 51.) In construing this statute, and its predecessors, we have held that the consolidation of separate causes for trial is discretionary with the trial court and our courts have found no abuse of discretion where the separate causes are of the same nature, arise from the same act, event or transaction, involve the same or like issues, and depend largely or substantially upon the same evidence, and when a joint trial will not give one party an undue advantage or prejudice the substantial rights of any party. (See: Black Hawk Motor Transit Co. v. Illinois Commerce Com. 383 Ill. 57; 34 I.L.P., Trial, sec. 4.) Here the consolidating order specifically found that common questions of law and fact existed in both causes, that it would be a convenience to all parties to have their rights determined in one hearing, and that no rights would be prejudiced by the consolidation of the actions.

Appellant does not contend to the contrary under this point but asserts only that the law requires that an application for consolidation must always be made before the trial of either cause of action has commenced. While it may be agreed that the application must be timely, we do not find that the inflexible rule contended for exists. As authority for her position appellant has cited Shooters Island Shipyard Co. v. Standard Shipbuilding Corp. (3rd cir.) 4 F.2d 101, Eckenooth v. Egan, (Sup. Ct.) 46 N.Y.S. 666, and Needham Piano and Organ Co. v. Hollingsworth, 91 Tex. 49, 40 S.W. 750. In each case, however, it appears that neither the parties nor the proof were the same in the separate causes of action, and consolidation was denied, where trial had commenced in one of the separate causes, on the theory that all parties to a consolidated cause had the right to participate in the entire trial. Similar factual circumstances do not exist in the present case. Moreover, there are still other authorities which state that consolidation may be affected at any step in the cause, (Baker v. Rowe, 102 Fla. 622, 136 So. 681; 1 C.J.S., Actions, sec. 112b(3),) and we note that the commencement of one of the actions was found to be no bar to consolidation in Miller v. Miller, 376 Ill. 628, and MacGregor v. Johnson-Cowdin-Emmerich, Inc. (2d cir.) 31 F.2d 270. The true answer, we believe, is not to be found in the fixing of an inflexible rule, but in a proper interpretation and application of section 51 of the Civil Practice Act which, admittedly, is patterned after section 96 of the New York Civil Practice Act.

Consolidation, it has been said, makes for expedition, conservation of the time of the court, avoids duplication of effort, and saves unnecessary expense. (Consolidated Dairy Products Co. v. Loft, Inc., 155 Misc. 771, 280 N.Y.S. 935; Borman v. Oetzell, 382 Ill. 110.) These, then, are the purposes to be achieved by section 51, and the only precaution imposed by the statute is that substantial rights be not prejudiced. (Goldey v. Bierman, 201 App. Div. 527, 194 N.Y.S. 373; McCaskill, Illinois Civil Practice Act Annotated, pp. 127-128.) "Within the limits of this anomaly, however, there should be such liberal construction as to simplify practice and expedite justice in so far as the power lies within the courts so to do." (Hurley v. Rose, 236 App. Div. 517, 260 N.Y.S. 67.) In light of these principles, and the liberal purposes of the Civil Practice Act, it is our view that consolidation may be effected even though one cause has commenced, when the court finds it reasonable and convenient to do so, and provided, of course, that substantial rights will not be prejudiced. Unless such prejudice did result in the instant case, the chancellor committed no error in permitting consolidation when he did.

Appellant next contends, however, that she was substantially prejudiced by that portion of the consolidating order which directed that evidence theretofore taken in the partition action should be considered as evidence taken in the consolidated cause. The record reveals, however, that the acts of adultery which formed the basis for a charge of fraud in the partition action were the same acts upon which appellee predicated his prayer for divorce and were therefore subject to identical proof by identical witnesses. Counsel for appellant cross-examined the adultery witnesses at length and, although it is now contended that cross-examination would have been conducted along different lines had the question of divorce been present, we are not informed wherein any substantial rights were prejudiced. It is also now stated that evidence "might very well have been produced to rebut" the testimony of the adultery witnesses. The record shows, however, that appellant did in fact present her aunt as a witness to rebut one of the charges of adultery, and no reason suggests itself why she was not at liberty to introduce further evidence of such nature, if any she had, when the hearing was resumed in the consolidated cause. Within this point appellant also attacks the propriety of the chancellor's order on the basis of authorities which hold that testimony given in a former action is, except in instances of death, inadmissible in a subsequent action. (George v. Moorhead, 399 Ill. 497; London Guarantee and Accident Co. v. American Cereal Co. 251 Ill. 123.) Such a position misapprehends that the effect of consolidation was to try the two suits at the same time. Cf. Lutticke v. Lutticke, 406 Ill. 181.

Throughout the hearing, the master made no rulings on certain objections to evidence but, as was the practice in Knox County, admitted the evidence subject to the objections. Appellant insists this practice was erroneous and that some of the evidence admitted was incompetent. Where a cause is referred to a master to take the testimony and report his conclusions on the law and facts, he is usually governed by the ordinary rules of evidence by which a court would be governed, and he should hear and exclude evidence as if the hearing were before the court. It is equally true, however, that unless the evidence is clearly inadmissible, the better practice is for the master to receive it subject to objections, so that it may be considered without re-reference of the cause in the event the court should deem it admissible. (Wylie v. Bushnell, 277 Ill. 484; 7 I.L.P., Chancery, sec. 413.) Insofar as the rulings here complained of are concerned, it would appear that the master did no more than to follow the accepted practice. Moreover, it may also be added that the question of the master's rulings is not properly before us for review. To take advantage on review of alleged errors in the admission of evidence before a master, it is necessary to object before the master by including the objection in the objections filed to the master's report, and to renew it before the court as an exception to the master's report. (Dunlavy v. Lowrie, 372 Ill. 622; Cleary, Handbook of Illinois Evidence, sec. 1.16.) An ...


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