49 Pa. Super. 18 | Pa. Super. Ct. | 1912
Opinion by
This was a libel in divorce charging the respondent with adultery. In response to the charges contained in the libel the respondent filed her answer denying that she had
“ 1. Hath the respondent, Clara W. Jackson, committed adultery at any time since the year one thousand nine hundred and two?
“2. Hath the respondent, Clara W. Jackson, committed adultery with one Melvin B. Smith at any time since the year one thousand nine hundred and two?”
The court below framed the issues as above stated, and the court further ordered that the said issues be tried by a jury. Counsel for both parties consented to the issues as framed by the court. When the case was reached for trial the libelant introduced sufficient evidence to carry the question of the adultery of the respondent to the jury and rested his case. The respondent’s counsel then opened her case and called the libelant for cross-examination and undertook to prove that he had been guilty of adultery since he and the respondent had ceased to have sexual relations. This testimony was objected to because no such charge was set up in the answer and the issues framed for trial related solely to the question of the guilt of the respondent as charged in the libel. The learned trial judge rejected all offers on the part of the respondent to prove that the libelant had been guilty of adultery because no question of recrimination was admissible or relevant under the issues framed. Thereupon, counsel for respondent moved to amend the answer and the issues by adding the plea of recrimination. This amendment was not allowed by the trial judge, on objection by libelant’s counsel. The record shows no exception taken to this ruling. Following the verdict, which was in favor of the libelant, the court below heard and dismissed the respondent’s motion for a new trial and granted the libelant a decree in divorce in due form of law, from which the respondent took this appeal.
The burden of the respondent’s complaint raised by the
When the respondent offered to introduce evidence for the purpose of establishing the defense of recrimination (assignments of error Nos. 1, 2, 3, 4, 5) the evidence was inadmissible as the issues then stood. Recrimination was not alleged as a defense in the answer, nor stipulated as a question to be tried by the jury in the issues tendered by the respondent in her answer, and framed by the court, with the consent of both parties. These issues only raised, for trial, the question of the guilt or innocence of the respondent, and they must be tried according to the statute: Act of March 13,1815, sec. 2, 6 Sm. L. 286.
We think the issues framed were the sole guide, both to the parties and to the court, in determining the nature of the controversy and the relevancy of the testimony to be received. When the defense of recrimination is not put in issue, testimony offered for its establishment is wholly irrelevant. The duty of the jury, in such case, is to render a verdict on the issues framed and submitted for trial. Each controverted fact should be found separately, and on these findings the court bases its decree.
We do not think the court erred in refusing the respondent’s requests contained in her first, second and third points for charge (assignments of error 7, 8, 9). But in addition to want of merit in these assignments, they are defective in form, because of the failure of appellant to include in them the ruling of the court and the exception taken thereto by the respondent as required by our rules.
The learned counsel for appellant contends that a proceeding in divorce is in effect an equitable suit and he asks to invoke the equity doctrine that the plaintiff must come into court with clean hands to secure the aid of a chancellor. While a suit in divorce is, in some respects, similar to a suit in equity, in other important respects it is wholly different. In equity the chancellor may grant
This leaves remaining the question of whether the court erred in refusing to amend the issues and allow an amendment of the answer. Upon this question we think it was clearly within the discretion of the court to refuse the amendments after the libelant had made a prima facie case for the jury and rested. See Fay v. Fay, 27 Pa. Superior Ct. 328, which we think recognizes the discretion of the court in granting or refusing amendments, during the trial, in divorce cases. We there said, through President Judge Rice: “As we construe the record as it stood prior thereto the amendment did not introduce and compel the respondent to meet a new question which was not comprehended within the broader issue originally framed; nor did it make evidence for the libelant competent that would not have been so if the amendment had not been made.” Under the rules governing amendments a cause of action different in form may be introduced, but not in
We do not think there is any merit in the first five assignments of error. The sixth is bad and cannot be considered, because it plainly violates our rules, first, in that it is not based on an exception, and second, in that it contains, more than one point or subject and violates our rule 14. As to assignments 7, 8, 9 and 10 we have already said enough, except to call attention to the fact that the first three of these assignments do not embrace the ruling of the court thereon and the tenth does not quote the decree of the court. There is introduced into the record, with leave of court, an assignment of error, No. 113^, to the decree of the court. Why the half is added to this number we do not know. The decree is in due form and in view of our disposition of the prior assignments this one is without merit.
In fact all of the assignments of error are founded on
The decree cannot be reversed except on the ground of an abuse of discretion by the learned trial judge. That he was guilty of an abuse of discretion does not appear, but, on the contrary, we think, in view of the issues and the existing facts at the time of the motion made to amend the answer and frame a new issue, the trial judge properly refused the motion.
The assignments of error are all dismissed and the decree of the court below is affirmed, and the appeal dismissed at the cost of appellant.