27 Del. 9 | Del. Super. Ct. | 1911
delivering the opinion of the court:
All the cases seem to hold that the courts will so far protect the infant as to see that he is properly served with process, and that a guardian ad litem is appointed to manage his defense.
It appearing to us from the affidavits filed that the defendant, for whom we are asked to appoint a guardian ad litem, has been properly served with process, and is an infant, we are prepared to make the appointment when a suitable person is suggested.
After hearing argument, the court made the following order:
“And now, to wit, this twenty-fifth day of September, A. D. 1911, upon motion of J. Harvey Whiteman, attorney for the plaintiff, and after hearing argument by counsel for the plaintiff and for Madeleine Du Pont Bancroft, one of the defendants,
“It is adjudged, ordered and decreed that sub-section C of paragraph second of the answer filed in the above stated cause, reading as follows, to wit:
“ ‘At divers times within the period aforesaid the plaintiff has committed adultery with divers other persons and at divers places not as yet fully known to this defendant and proof of which she has not yet fully obtained and is therefore unable to state with more particularity at the present time, but which she expects to be able to obtain and submit and prove to the court at the trial of this cause,’
—and that that part of paragraph third reading as follows, to wit:
The court appointed a guardian ad litem for the infant defendant by the following order:
“Whereas, it appears by the return of the sheriff to the summons issued in the above stated case that service of the said summons was made personally upon Max Hiebler, Jr., one of the defendants in the above stated case, on the fifth day of June, A. D. 1911, by the sheriff of New Castle County, aforesaid:
“And whereas, it appears by the affidavits in the above stated case that the said Max Hiebler, Jr., is an infant of tender years;
“And whereas, counsel representing the plaintiff in the above stated case move the court for the appointment of a guardian ad litem to represent the said Max Hiebler, Jr., in the above stated cause;
“And whereas, argument was heard upon said motion for the said guardian ad litem;
“Now, therefore, on this twenty-fifth day of September, A. D. 1911, upon consideration of the foregoing petition and proof of personal service of the summons upon the said Max Hiebler, Jr., the court hereby appoints Thomas B. Heisel as guardian ad litem for the said Max Hiebler, Jr., with authority to appear for him and make defense for the said Max Hiebler, Jr., in the above stated case.”
After said appointment the answer of the infant defendant was filed by his guardian.
A commission to take testimony orally in a foreign country on behalf of the defendant without interrogatories was issued
The court then consisted of Pennewill, C. J., and Rice, J.
The commissioner made return of the commission at the November term of said court, stating that he had not sufficient time to take testimony and return it to the present term of court. November tenth counsel for the defendants applied to the court to have the commissions continued to the January term of the court.
Counsel for plaintiff opposed the continuance because, he contended, due diligence had not been exercised, and also because the defendant had not complied with the rules of court respecting continuances at the second trial term.
delivering the opinion of the court:
We do not mean by this, of course, that a defendant is not required to exercise due diligence in preparing for trial. He must not sleep upon his rights, take advantage of his own loches or disregard any rule or practice of court. But we do mean that the rules of court governing the taking of testimony of nonresident witnesses will be liberally construed in divorce cases so that they may be heard and determined upon their merits.
It is ordered by the court that the commission issued since the last term of court, and returned to the present term unexecuted for lack of time, be continued to the next term, and that the case be likewise continued.
Counsel for defendant thereupon asked to file the following answer alleging recrimination, viz.:
“Madeleine Du Pont Bancroft, the defendant, saving and reserving unto herself all and all manner of objections and exceptions to the manifold errors and imperfections of the petition or libel of which she may avail herself by plea or demurrer, for further answer to the said libel, by leave of the court first had, saith:
“That John Bancroft, Jr., the said plaintiff, being at the time sojourning in Munich, Bavaria, Empire of Germany, in vio
“(a) At divers times between the twenty-eighth day of December, 1908, and the commencement of this action, the said plaintiff committed adultery with one Ella Mahl, at Munich, Bavaria, Empire of Germany, the particular locality or localities in the said City of Munich being to the defendant at present unknown.
“(b) At divers times between the twenty-eighth day of December, 1908, and the commencement of this action, the said plaintiff committed adultery with one Hilda Metzkopp Kirchseeon, at Munich, Bavaria, Empire of Germany, the particular locality or localities in the said City of Munich being to the defendant at present unknown.”
Mr. Whiteman, for plaintiff, objected, on the ground of insufficiency of particularity as to the times of the alleged acts of adultery. Mr. Heisel, for defendant, contended that in the answer it was not necessary to allege time and place, with the same particularity as in the libel.
Pennewill, C. J.:
“When the respondent’s defense amounts in substance to a traverse of the allegations contained in the libel, and does not embrace matters of condonation, recrimination-or other special defenses, a formal answer to the libel is unusual and unnecessary. As the libellant must prove the averments of the libel in support of his case, so the respondent, without formal answer, may introduce any evidence that is in contradiction of the libellant’s proof.
“When divorce is sought on the ground of adultery, the statute provides, that ‘if the defendant shall recriminate and prove that the complainant has been guilty of the like crime; or has admitted the defendant into conjugal society or embraces after knowledge of the adultery; or that the complainant, if a husband, allowed of his wife’s prostitution, the petition shall be dismissed.’ Such defenses, as it appears, partake of the nature of confession and avoidance, or if the allegations of the petition
That seems to be the law in this state, and, we think therefore, the averment in .the answer, as to time, is too broad.
Counsel for the plaintiff moved that the orders heretofore made for the issuance of commissions to take the testimony of non-resident witnesses on behalf of one of the defendants be annulled, on the ground that under the law of this state testimony so taken cannot be used in divorce cases.
delivering the opinion of the court:
The said section as amended by SectionS, Chapter 213, Volume 25, Laws of Delaware, reads as follows: “All hearings and trials shall be had before the court, and not before a master, referee or
We think all that was intended to be accomplished by the section mentioned was to change the method or procedure of hearings and trials in divorce cases, so that they should be had before the court instead of before a commissioner, as was the case prior to the enactment of the statute referred to; and further, that all such hearings and trials should be public, except such as the court believed, for sufficient reasons, should be had privately.
The court are clearly of the opinion that hearings or trials of divorce cases under the present law, are subject to, and are to be governed by, the same laws and rules as govern other trials in open court, so far as the taking and introduction of testimony is concerned, and the motion of the plaintiff is, therefore, refused.
Before Boyce and Rice, J. J.
Mr. Heisel, for defendant, asked further leave to file an additional answer. Mr. Whiteman, for plaintiff, objected, as on the former occasion, that the alleged answer was not sufficiently particular. The paper was handed to the court.
Boyce, J.:—Mr. Whiteman, we have read the proposed answer. We will hear you.
Mr. Whiteman:—My objection is that the answer gives me no notice, and is a subterfuge for one that was attempted to be filed here last week. In matters of this kind, the courts have required great particularity, and the rule of court is that the answer is required to be of the same particularity as the petition. While it is addressed to the discretion of the court, yet it is a judicial discretion, which the court will exercise according to well established rules.
In cases of adultery the name of the person is always required. We, however, have a few isolated cases going to this extent: that if the name of the person and the specific residence are given, you may allow some latitude as to time; and the reverse of that is true—that with the name of the person, and being specific as to time, some latitude as to place will be allowed. The place is laid in Munich, a foreign city containing from 250,000 to 300,000
Mr. Heisel:—All charges in connection with this case are laid in Germany. Last week I offered as a further answer to this cause an affidavit covering an answer similar to the one presented to the court today. The court refused to allow me to file that answer on the ground that it was not sufficiently specific as to time. Just as soon as it was possible for me to fix the time more definitely from information which I had to obtain from Germany, I prepared this further answer which I have presented to the court.
There are many cases holding that the month and the year which are alleged is definite enough. In Addicks v. Addicks, 1 Marv. 338, 41 Atl. 78, the court held that if the year was named that it was sufficiently definite. Black v. Black, 26 N. J. Eq. 431; Bishop on Marriage, Divorce and Separation, § 1340.
Rice, J.:—Mr. Heisel, in filing the further answer, you do not mean that that answer supplements so much of the other answer as it stands now?
Mr. Heisel:—Yes, sir.
Rice, J.:—There is an answer filed. Does this take the place of the old answer?
Mr. Heisel:—No, sir; this supplements the old answer. It is an additional, further answer. I am not filing it as a substitute for, oir an amendment to the old answer, but as an additional answer.
Boyce, J.:—Your purpose is that this proposed additional answer shall supplement the original answer?
Mr. Heisel:—Yes, sir.
delivering the opinion of the court:
This is a second application by Madeleine Du Pont Bancroft, one of the defendants, made within a week, to file an additional answer to plaintiff’s petition for divorce, alleging misconduct of the plaintiff by way of recrimination.' The first application was
We have had very little time to consider the questions raised because the commissioner appointed to take testimony in Germany has made all arrangements to sail in a few hours.
Before reaching our conclusion, the court inquires of you, Mr. Heisel, whether the new matters averred by your client have only come to her and your knowledge very recently, and since you sought to file the first additional answer, which was refused by the court.
Mr. Heisel:—They came to my knowledge for the first time on Friday of last week, the tenth instant.
Boyce, J.:—Have the averments been made as fully and with all the particularity you are able to do at this time?
Mr. Heisel:■—They have.
Boyce, J.:—
In view of the fact that the commissioner is about to sail for Germany, and the answers made by Mr. Heisel to our inquiries', and in the absence of any settled practice, the question whether we should entertain the present application, belated, as it is, is one which appeals to our discretion. Under all the circumstances we think it should be entertained. And after a hurried consideration of the sufficiency of the averments, other matters in court engaging our attention at the same time, we think the averments are sufficient.
Leave is granted to file the additional answer.
Before Pennewill, C. J., and Conrad and Woolley, J. J.
Upon the application of defendant’s counsel, and without objection, the court made an order that fifteen days’ notice be
Mr. Kurtz, the commissioner, made return, reporting that under the law of Germany he was not permitted to take the testimony of German witnesses, as that prerogative belonged exclusively to the German courts. The only testimony obtained by the commissioner was taken outside of his commission, in the form of an affidavit of one witness submitted by counsel for Madeleine Du Pont Bancroft, regarding which the said attorney had the witness voluntarily submit herself to cross-examination by the attorney for the plaintiff, in reference to the statements in said affidavit. That examination took place in the office of the United States Consul in Munich, Germany.
The commissioner’s report showed that said affidavit was not filed in court, but was delivered to counsel for the defendants, which was subsequently used in the trial for the purpose of laying ground for contradiction of said witness when called to the stand to testify.
The case came on for trial at the November term, 1911, before Pennewill, C. J., and Conrad and Woolley, J. J. Charles T. Terry, of the New York bar, and Paxson Deeter, of the Philadelphia bar, were admitted pro haec vice as additional counsel for the plaintiff and the defendants, respectively.
Counsel for plaintiff offered in evidence, as tending to prove a confession of adultery, a letter written by the defendant, Madeleine Du Pont Bancroft to her sister-in-law. This was objected to by counsel for defendants, who contended that any admission of the defendants of adultery was inadmissible under the divorce statute of 1907.
Pennewill, C. J.:—We understand the offer of this letter is to support the charge of adultery.
Mr. Terry:—Precisely. That is all that it is offered for at this time.
Pennewill, C. J.:—
We overrule the objection.
Counsel for defendants further contended that the statute meant that the confession could not be admitted until the case is established by other affirmative proof.
Pennewill, C. J.:—In reply to that suggestion, Mr. Deeter, the court feel that there has been introduced some evidence—we do not undertake to say what its value or effect may be—tending to establish the charge. We do not think it would be competent for us at any particular stage of the case to determine whether there has been sufficient evidence to establish it or not. So that we still think it is admissible.
In the course of the trial letters and other admissions of the wife and her alleged paramour, tending to show the paternity of the child, were admitted against objection, in proof of adultery of the wife, but subject to the further consideration of the court as to whether they may be considered in support of the issue of the illegitimacy of the infant defendant. The opinion of the court was as follows:
Pennewill, C. J.:
The court has already decided in this case that, while a decree of divorce cannot be granted upon the admissions or confes
And it occurs to us now that there is another reason why the: court may not refuse the admission of said letters, which is this::
It is true, therefore, that the fact of access is in dispute and contested, and we are not now prepared to hold that the plaintiff may not establish his claim of non-access by testimony other than that of expert medical testimony.
We will admit in evidence in support of the issue of adultery the letters offered, and determine later whether they shall be considered by the court in proof of the issue of illegitimacy. Whether they are, or are not, legally admissible in support of the latter issue may be more apparent in the further development of the case; and in the meantime we will be able to examine with more care than is now possible the authorities which have been just cited, and possibly arrive at a more satisfactory determination of the important questions that have now been raised for the first timein this state, and apply the same to the decision of this case.
The objection is overruled.
delivering the opinion of the court:
The court are prepared to announce their decision in the above stated case.
After a very careful, thorough and serious examination and consideration of the arguments, the evidence and the law, we have reached the following conclusions, viz.:
1. That a decree nisi should be entered, divorcing the plaintiff and defendant wife from the bonds of matrimony heretofore existing between them. The Court are satisfied that the cause for divorce was shown by affirmative proof aside from any admissions on the part of the defendant.
2. That the exclusive custody and control of the child,— John Bancroft, should be awarded to the plaintiff.
3. That a decree should be entered establishing the illegitimacy of Max Hiebler, Jr., the infant defendant.
In reaching this conclusion we have not regarded the letters or other admissions of the defendant wife or Max Hiebler, which were received in evidence to be thereafter considered, or disregarded, by the court in arriving at their judgment.