Addicks v. Addicks

15 Del. 338 | Del. Super. Ct. | 1894

Lore, C. J.,

delivered the opinion of the Court.

We have considered the two points presented and argued in this case, and are now prepared to announce conclusions of the Court.

First. With respect to the bill of particulars; we have no doubt at all that this Court has the power to pass upon the sufficiency of the libel, both as to its form and as to its particularity. And we think that the time to object to that want of sufficiency for either of these causes is before the case is committed to the Commissioner and before answer filed. For if, either with or without answer, it goes to the Commissioner, the defendant in the case would be considered as having waived all objection to the libel. It would go with his consent.

As to the particular mode in which this should be done where the libel is insufficient in the judgment of the Court—whether by a bill of particulars or whether the party be required to particularize by way of amendment—is more a matter of form than otherwise. We think that these proceedings were taken at the right time, and properly taken, whether the demand is for a bill of particulars, or a particularization or specification of the charges more in detail.

We do not ihinlc, however, that this is a case where the defendant can call for greater particularity. Examination shows that the first charge is a charge of continuous adultery within certain dates. It does not occur to us that it would meet the purposes of particularization any better if it were to say “ Beginning on the first of January 1887, and. continuing through that month, through February, March, April, May, and running all through the years following’; ” because the statement that there were continuous acts of adultery from 1887 to the time of the filing of this petition necessarily includes that. The averment covers the whole ground, it seems to us, and is therefore sufficiently detailed and specific.

The same rule will apply to the second allegation.

It will be noted that the co-respondent and the places are set forth with particularity; the time only is in any respect vague. We listened with a great deal of attention to the cases cited by the learned counsel for the defendant; and none of them called for greater particularity where the person and the place were named? than that the years shall be named. The month applied to those cases where the name of the co-respondent was not specified.

We think that the particularization and specification in this libel are sufficient, for another reason: Many of the cases cited were cases where there was a trial upon an issue framed before a jury, where the trial must be had within the compass of probably a day or so, or within the ordinary limits of a jury trial. In such cases the issue framed required exact particularity, so that the defendant might be advised beforehand and know what he had to meet in that short time. Our method is different. The case is sent to a Commissioner. The testimony is taken in writing. All the testimony for the libellant is heard; and ordinarily, after it is heard an opportunity is given for the defendant to prepare to meet the charges; limited, as a matter of course, to whatever may be within the scope of the allegations of the libel. So that no surprise can come to the defendant. He hears the whole case, and has time to prepare for the charges made after the testimony is all heard on the part of libellant.

We think, therefore, for the reasons stated, that the libel is sufficient, both in form and particularity; and therefore discharge the rule.

We have also considered the application for alimony and a sum necessary to defray the expenses in conducting this case.

The Court cannot consult their own feelings and sympathies in such cases, but must do exact justice under the law, and be governed by precedents, where precedents have been established. In the matter of alimony, we think our discretion is somewhat curtailed by the indication of the act of the Legislature controlling what we think is the condition of the parties in this suit. The petitioner asks for alimony for her sustenance pending her suit. The Legislature a few years ago passed an act providing that where the husband and father deserts his wife and children he is bound to provide for their sustenance or maintenance. And the Legislature has said that the Court may compel him to pay a sum of money for the maintenance of the wife, or children, or the wife and children, not exceeding in amount any one month the sum of one hundred (100) dollars. In the McComb divorce case, although the matter was not formally brought before the Court, that amount was formally recognized as the limitation in this Court in divorce cases; and we do not think it would be wise to depart from it.

The order in this case, therefore, is, that the defendant pay to his wife, pending the suit, the sum of one hundred (100) dollars per month, payable monthly from this date, the first payment to be made one month from this date.

When we came to the matter of expenses necessary in conducting the petitioner’s case, we were somewhat more embarrassed than on the other matter, because there the Legislature seemed to have outlined our duty.

We recognize, from the libel filed, that this case will involve a wide scope of testimony; bringing witnesses from a distance, and •will doubtless involve a great deal of labor and expense. And yet, here we have been embarrassed; we know of no case, and upon •consultation no case can be found, under the practice of this State where large amounts have been granted in the first instance. But subsequent applications have been recognized for enlargement, if in the actual conduct of the case larger sums became necessary.

We have thought, therefore, considering all the facts, that fifteen hundred (1,500) ought to be paid by this defendant for defraying the expenses. There is no such thing as counsel fees specified under our statute; all outlays come under such sum designated as necessary in defraying expenses of suit. We think fifteen hundred (1,500) dollars, under the practice of this State, is as far as we can go. This, however, does not prevent an application for an enlargement of this sum, if the necessities of the case should become manifest.

We, therefore, fix the sum of fifteen hundred (1,500) dollars and order the same to be paid within one month from date, to defray the expenses of the petitioner in conducting this suit.