67 Ga. 92 | Ga. | 1881
Annie Mosely brought her libel for divorce against C. A. Mosely to the superior court of Montgomery county; alleging that on the 18th of October, 1849, the petitioner and Clement A. Mosely were married in due form of law!
That they lived together from the time of their marriage until within a few days of their separation, during which time they had born unto them four children. She further alleges that her husband, forgetful of the duty and obligation due to petitioner, on or about the 9th day of May, 1855, did curse, abuse, and inhumanly treat your petitioner, and with force and arms drove her and her small and helpless children from his house, the youngest child being only six or seven months old, and the oldest seven years old. That she has had the care and support of said children since the separation, and owing to her
Whereupon she brings her suit, etc.
To this libel of plaintiff, defendant by his counsel demurred, ore tenus, and for cause of demurrer said, “ that the plaintiff’s right of action for divorce, and application for temporary alimony and counsel fees are barred by the statute of limitations.”' By consent of counsel and order in term the question of the demurrer to petitioner’s libel was postponed to be heard in vacation by the judge.
On the hearing thereof the court overruled the demurrer and the defendant below excepted.
- The question is thus presented, whether the statute of limitations is applicable to divorce suits under the laws of this state.
To determine this question it wül be well to inquire into the early history, of this character of proceeding, with a view of tracing the rules and practice that have obtained in the courts that took cognizance of such causes.
' “In England ‘all matrimonial causes’ are.heard in the ecclesiastical courts. These are the courts of the archbishop, bishop, and other functionaries of the church, by whom instead of the crown their judges are commissioned. ■Yet in effect it is from the same source as the lay tribunals, since, the king is the head and supreme governor of the church. - Matrimonial causes fell naturally within this 'jurisdiction of the spiritual-courts, because marriage was ■then regarded .as one of the sacraments of the church.”
The jurisdiction and trial of divorce suits having been thus, as “ ecclesiastical law,” transplanted into our system of laws by the constitution of 1798, and the statute in pursuance thereof, we are to look to the rules and practice of the ecclesiastical courts of England, in the absence of statutory regulation, for our guide, and precedents touching “ matrimonial causes ” in our courts of law. What was the rule, and so far as we have been able to discover, what continues to be the rule in the English ecclesiastical courts on the subject of lapse of time in divorce suits. Mr. Bishop in his admirable work on Marriage and Divorce, says: “ A remaining defence in suits for divorce is the lapse of time since the offence complained of was committed. In England, however, there is no statute of limitations applicable to these suits, and the courts have never laid down any analagous rule; mere delay is not therefore itself a bar. Yet it may furnish strong evidence of a condonation or connivance,” and it may
Where there has been such a delay as operates prima facie against a party he is at liberty to explain it. Ib., 412. In the English practice the plaintiff sometimes introduces into his libel articles to account for his delay in instituting his suit, but it is not necessary to examine witnesses upon such articles unless the defence is such as to require him to justify his conduct. “ It is true, that in some of the states there are statutes that, either expressly or by implication, limit the period within which after the discovery of the offence the suit must in all cases be brought. Such a statute operates as an absolute bar.” 2 Barb. C. R. 309. In New York, the statute is fixed at five years, in New Hampshire, at eight and in other states they vary, but we can find no English case, “from the ecclesiastical reports, nor has any been cited, showing this plea was sustained as a bar to a hearing on the merits, and as we have adopted the ecclesiastical law of England into our body of laws touching matrimonial causes, we adhere to its rules and precedents unless altered by statute.
But it is insisted most earnestly and ably by counsel for plaintiff in error, that in the year 1850 a statute was passed by the legislature changing the law, upon the subject of divorce and declaring and defining grounds upon which the same can be had, and that, as this .right of action is now the creature of statute, the limitation laws apply to such suits. That if it be a statutory right the limitation is twenty years. .If not, then it falls under the class of all other actions ex contractu, and the limitation is four years. See Code, §§2913 to 2925.
We cannot agree with counsel as to either of these limitations being applicable. Shall we place the marriage contract on the same plane as that of other contracts ? It is true, in law-writings it is generally denominated a contract, but it is more than a contract, and differs from
In other states, where common and ecclesiastical law prevailed, for this cause of action special statutes in bar were enacted, and until the law-making power here so enacts we do not feel authorized by implication to apply any limitation now in force to this character of suit.
But one ground of this libel is willful and continued desertion. Can lapse of time, unless prescribed by law, condone this violation of conjugal duty? Can a daily, monthly and yearly continuance of this breach of faith grow so old that it ceases to be a reproach ? Shall it be said that an abandonment for three years is a cause of divorce, but a desertion of twenty years is a shield and protection from its consequences ? Now we do not mean to say that, according to the English law, 'this long delay may not be a subject of inquiry by the court and-júry on the trial, and
Our judgment, therefore, is that the demurrer to libellant’s petition for a divorce was properly overruled, and we affirm the judgment of the court below.
Judgment affirmed.