61 Fla. 701 | Fla. | 1911
On May 20, 1909, Lucy Parramore brought an original bill in the nature of a bill of review against Zack Parramore to annul a final decree on the ground of fraud. Shipman on Eq. Pl., p. 316; Van Zele Eq. Pl., 485.
The bill in substance alleges that Zack and Lucy were married in 1894, and lived together as husband and wife till February, 1905, when she left him because of his extreme cruelty to her, specific instances being stated; that failing to secure better treatment from her husband she went to Texas where she had formerly lived; that “the defendant well knew her location; not only was it known in the neighborhood by his kinsmen and friends, but he himself wrote letters to her and communicated to her and addressed his letters to her at Cameron, Texas;” that on March 10, 1906, while complainant was residing
Complainant alleges that she never appeared or plead in the aforesaid divorce proceedings instituted by defend
In his answer the defendant Zack Parramore admits the marriage with Lucy, and denies the allegations of the bill except as to non-appearance of Lucy in the divorce suit; avers that Lucy had full knowledge of the proceedings and denies that the “decree of divorce was fraudulent and void;” “denies that complainant is living apart from him because of the fact that he has procured this divorce, but admits that he refused to recognize her as his wife and admits that subsequent to the divorce herein granted he had married again and is living with his second wife;” avers “that he and complainant were married in 1894 as alleged and lived continuously together as man and wife until about six years ago; that during the time they so lived together he did all in his power to make life comfortable and happy for the complainant herein; that about two years before she left him she began to get cross and dissatisfied with him and refused to cook his meals and refused to wash his clothes or attend to shousehold duties, but would wander around in the settlement, staying part of the time at one neighbor’s and part at another’s; this defendant being a farmer by trade and dependant upon his labor and that of the. complainant to make a living for them, said complainant refused in any
This defendant for further answer says that during the time the complainant was in Texas, he wrote her a number of letters as a husband would to a wife, seeking her to return to him and always hoped he would bring about a reconciliation; that even after the divorce was granted he wrote her some letters, that he felt kindly towards her and would have been willing to re-marry her
This defendant says further that after his divorce was granted he was a farmer and lived out alone and has found it to his interest to take unto himself another wife on account of the desertion of complainant; that he has not written to complainant or sent her anything or had any communication whatever through friends or otherwise since he married his second wife, having given up all hopes at reconciliation with complainant; that he has never at any instance told her that the divorce suit was dismissed or ever promised to dismiss it in any way; that the said divorce was obtained in good faith and on properly proven grounds and absolutely free from any fraud whatever; that prior to the time the complainant permanently left this defendant, he was going to make a sale of a piece of land and she insisted that if she executed the deed to the land she must have a deed to forty acres too and in order to appease her fancy he deeded her a tract of land at her request, which land complainant now has and claims as her own, and is able to pay her own attorney's fees with this land and money she has earned during her travels as she is able to travel around from Florida to Texas -and back every few years.
This defendant further answering says as to the allegations that he had ever done any violence to complainant
This defendant by way of demurrer submits to the court that the said complainant does not in and by her said bill of complaint make or state such a case as to entitle her to the relief prayed for and prays the same advantage on this point as if he had especially demurred to the bill of complaint.”
Replication was filed and testimony taken.
The decree of the court states that “this cause coming on for final hearing on the pleadings and proof, of which hearing both parties have due notice and the court having fully considered the testimony and heard argument of counsel and being fully advised, is of the opinion that the complainant has sustained by testimony the allegations of her bill charging that the final decree of divorce in the suit of Zack Parramore against Lucy Parramore, signed on the 6th day of November, 1907, was obtained by the fraud of said Zack Parramore in falsely alleging in his affidavit for the securing of the service by publication that he believed that said Lucy Parramore was a resident of Waco, Texas; Therefore, it is ordered, adjudged and decreed as follows ■:
1. That the final decree of divorce entered on the 6th day of November, 1907, in the suit of Zack Parramore against Lucy Parramore as filed on the 9th day of November, 1907, be and the same is hereby vacated, set aside and annulled and the marriage status reinstated as between said parties, and said suit of Zack Parramore against Lucy Parramore is hereby reinstated, with leave to said Lucy Parramore to answer or demur to the bill of complaint in said cause on or before the rule day in March, 1911, failing which the said bill may be taken as confessed against her as of course.
It is further ordered, adjudged and decreed, that the said Zack Parramore, defendant in this cause, do pay all cost of this proceeding, including an attorney fee of fifty dollars to the solicitor of said Lucy Parramore, which the court finds to be a reasonable fee, for which costs and attorney’s fee as taxed' by the clerk let execution issue in due form of law.”
The defendant appealed.
On the showing made the complainant has not lost or abandoned her right by laches. In suits involving the marital status and rights, strict rules of procedure are not required; and where the rights of the parties are in substance protected the proceedings are largely in the discretion of the trial court. See Spencer v. Spencer, decided at this term. Where the discretion of the chancellor is not shown to have been abused, an order receiving testimony that was taken after the time allowed by the rule for taking testimony has elapsed, -will not be disturbed in cases affecting the marriage status. And it is within the discretion of the chancellor, where there is no abuse, to allow testimony to be taken after the case is set down for hearing on bill, answer and replication after the time for taking testimony has elapsed. On the case made it was not error to vacate the final decree of divorce and to reinstate the divorce proceedings with leave to the defendant therein to answer or demur. The evidence justifies the finding that the affidavit as to i;he residence
The decree is affirmed.