65 Vt. 623 | Vt. | 1893
This case presents the question whether a divorce for wilful desertion can be granted on a petition brought before the three years have expired, when that time has fully expired at the time of the hearing. By R. L. 2,362 it is provided that a divorce from the bonds of matrimony may be granted for wilful desertion for three consecutive years. The cause is not complete until the end of that time. If during that time, even to the last day, the deserting party, in good faith, returns and offers to resume the marital relation, the cause would be defeated. At common law, and usually under statute law, a suit cannot be instituted until the cause is complete. But this statute was so construed when jurisdiction of divorces was in this court as to allow a divorce, if the cause was complete at the time of hearing, although it was incomplete at the time the libel was served. Under that construction the practice grew- up of frequently bringing the libel before the expiration of the three consecutive years. This practice has continued to the present time and no practical inconvenience has arisen from it. If the construction was unwarranted, presumably it would have been corrected by legislation. Divorce proceedings are of the nature of session-proceedings, and not subject to the ordinary rules of pleading and practice. Usually there are no pleadings except the libel. The libel is not required to conform to the common law rules in regard to declarations. The libel is frequently helped by rule for specifications. The libellee frequently does not appear. When he does appear without any plea he may show any fact that will defeat the libellant, such as condonation or recrimination or former adjudication. Mitchell v. Mitchell, 11 Vt. 134; Booth v. Booth, 11 Vt. 206; Blain v. Blain, 45 Vt. 538; Stearns v. Stearns, 10 Vt. 540; Shackett v. Shackett, 49 Vt. 195 ; Foster v. Redfield, 50 Vt. 285 ; Bur
Exception sustained, judgm ent reversed, and inasmuch as the trial cotirt has not certified that it pound the marriage and residence -proved, the cause is remanded.