73 W. Va. 7 | W. Va. | 1913
This is a proceeding instituted by plaintiff, under §13, Ch. 64, Code, for an obsolute divorce, pursuant to a prior decree granting him a divorce a mensa et thoro. From a decree awarding the relief sought, the defendant appeals. By her assignments of error, she presents two interdependent questions for determination: whether the circuit court had jurisdiction to pronounce the decree complained of; and whether the depositions read on behalf of plaintiff should have been suppressed as irregularly taken.
As disclosed by the record, the original suit was instituted in April, 1903. A final decree therein was entered October 1, 1904, granting plaintiff a limited divorce, awarding to each parent custody of certain of the minor children, and making provision for alimony of one hundred dollars per month. It was “further ordered that the plaintiff pay the costs of this suit and that the same be stricken from the docket”. Apparently, there was neither pleading nor proof sufficient to support this decree. But, no appeal having been taken therefrom, it can not now be disturbed. Chapman v. Chapman, 70 W. Va. 522. Hothing further was done in the cause until September 1, 1911, when the plaintiff caused to be served upon the defendant two notices — one that he would, on the 19th of that month, apply to the circuit court “for an absolute divorce from the bonds of matrimony”; the other, that he would, as he in fact did, on September 4th ensuing, take depositions in support of such application.
On the day designated in the first notice, the defendant appeared specially and moved to quash the notice “on the ground that .there was no suit pending.” The motion was overruled. The defendant then moved to suppress the depositions of defendant, filed on the previous day; but that motion was likewise overruled. “Thereupon,” as the order of the court of September 19th recites, “the plaintiff tendered his said petition and application for an absolute divorce from the defendant, notice of which has been duly served on the defendant, which said notice and petition are ordered filed.” The petition recited the former proceedings in 1904, averred compliance by
Appellant assigns only two grounds of error, either of which, in our opinion, warrants reversal of the decree entered September 19, 1911: first, lack of proper notice; and, second, the court’s refusal to suppress plaintiff’s depositions.
The only information afforded appellant of the relief sought was an informal, unofficial notice, signed by appellee; that on the day named he would ask a decree for absolute divorce from her. It did not summon her to answer any pleading filed or to be filed. No pleading was in fact tendered or filed, until the day and at the time of the entry of the decree granting relief. The appellee seeks to defend this informal method on the ground that the statute does not specifically require any process or pleading; that it only requires an "application.” It is true, there is no prescribed procedure, no definite direction in the statute. But its failure to prescribe or direct does not authorize each suitor to determine for himself, contrary to the regular and orderly procedure, the course he may pursue to attain his purpose. Such liberality would be subversive of and discordant with all the requirements of orderly procedure, and therefore can not be tolerated. All proceedings for divorce, or the annulment or affirmation of marriages, are to be by suits instituted and conducted as other suits in equity, with the exception noted in §§ 7 and 8, Ch. 64, Code. Therefore, the rules of chancery practice must be observed; otherwise the proceedings are abortive. "It is within the power of courts, in administering statutes, to adopt such practice or procedure as will attain the ends of justice, avoid surprise, and give parties opportunity to answer charges seeking to impose liability upon them. . Where a statute allows a judicial proceeding to a man’s prejudice, though it do not provide for notice, it is understood to intend it, as no judgment can he given under it without process, and process is necessary. The statute does not dis
By notice in the cases cited is meant process to answer some pleading stating some grounds- as a basis for relief, some charge, which the defendant as advised may admit or deny, or against which he may present some counter charge or claim, thus demanding from his adversary full and competent proof; and not ordinarily a mere notice prepared, signed and served by the plaintiff or at his instance, as in this case, of a motion in anticipation, without such pleading, except where the statute expressly authorizes that course, as of a motion for judgment under § 37, Ch. 86, Code, or as now in condemnation proceedings.
Besides, the original cause had long since terminated. It was not thereafter reinstated on the docket for any purpose, not even at the date of the last decree. A final decree ends the cause— puts it out of court. After adjournment of the term, no further order as to the parties can be made therein, unless they are again brought into court by some recognized legal method. Green v. Railroad Co., 11 W. Va. 686; Ruhl v. Ruhl, 24 W. Va. 279; Barbour v. O’Neal, 42 W. Va. 295. They can not be reassembled by a mere notice from one to the other, as undertaken by the plaintiff — a method not sanctioned by any authority cited by appellee or found on tins examination. On the contrary, as noted, it is against authority, here as well as elsewhere. An application by a party who has obtained a limited divorce for a divorce from the bonds of matrimony is a new proceeding, requiring notice to the adverse party, and a hearing by the court. Garnett v. Garnett, 114 Mass. 379; Graves v. Graves, 108 Mass. 314; Edgerly v. Edgerly, 112 Mass. 53. The statute construed in these cases, as appears reasonably certain, is similar to ours; and in each of them there was a petition and personal service of process. Where the object of the suit is to obtain a final decree of divorce, either party has the right to require the case to be set down on the ordinary docket of suits and tried in the ordinary way, under averments such as would authorize a decree. Donato v. Frillot, 116 La. 199, 40 So. 634. The court said: “Under our Civil Code the proceedings for a separation from bed and board are separate and distinct from
Our conclusion also is, as stated, that the court erred in refusing to suppress the depositions taken on notice to defendant. As we have seen, there was nothing to prove. Ho pleading of any character had been filed, no affirmations made, no cause of action asserted, no effort for reconciliation alleged nor its improbability stated. What was there to prove? We need only cite Cooper v. Bennett, 70 W. Va. 110, which, although an injunction suit, discusses the right to read on final hearing depositions taken before the bill was filed. There it is said: “Technically, there was no suit pending when the depositions were taken. No summons was issued, no bill had been filed, and there had been no appearance.” See also Goldsmith v. Goldsmith, 46 W. Va. 426; Edgell v. Smith, 50 W. Va. 349; James v. Pigott, 70 W. Va. 436.
Against the reading of the depositions filed in the case, appellant also properly urges irregularity, in this: that they were taken on the 4th of September, that day being the first Monday of the month and therefore, under Ch. 15L, Code, a holiday.
We therefore reverse the decree, and remand the cause for further proceedings, in accordance with the principles herein announced.
Reversed and Remanded.
