Ayres v. Gartner

• Decision Date: 03 March 1892
• Citation: 90 Mich. 380,51 N.W. 461
• Court: Michigan Supreme Court
• Parties: AYRES v. GARTNER, Circuit Judge.

51 N.W. 461

90 Mich. 380

AYRES v. GARTNER, Circuit Judge.

Supreme Court of Michigan

March 3, 1892

Application of Charles N. Ayres for a writ of mandamus to compel George Gartner, circuit judge of Wayne county, to dismiss a bill for divorce. Writ granted.

Frank B. Leland, for relator. Dickinson, Thurber & Stevenson, for respondent.

PER CURIAM.

Section 6232 of Howell's Statutes, as amended in 1887, provides that "no divorce shall be decreed in any case when it shall appear that the petition or bill therefor is founded in or exhibited by collusion between the parties; and the oath or affirmation administered to the complainant in swearing to such petition or bill shall, in addition to all other legal requirements, recite the following: 'And you do solemnly swear (or affirm) that there is no collusion, understanding, or agreement whatever between yourself and the defendant herein in relation to your application for divorce."' Complainant filed her bill for divorce, and obtained a preliminary injunction thereon, but the oath to said bill did not contain the recitation required by the statute. Defendant appeared, answered, and afterwards moved for a dissolution of the injunction, which motion is undetermined. Other counsel has since been employed by defendant, and a motion was made to dismiss the bill because of the failure to comply with the statutory provision above recited. The court denied the motion, and this is an application for a mandamus to compel the court to dismiss the bill and dissolve the injunction. No testimony has been taken upon the merits.

The writ must issue as prayed. This is a statutory requirement, and is mandatory. Rule No. 95 requires bills for divorce to be verified by the oath of complainant; and, as was said in People v. McCaffrey, 75 Mich. 123, 42 N.W. 681, the statute gives this rule the force and effect of statute law. No motion to amend has been made, nor has any order been made directing an amendment, although a motion was made to dismiss because of this defect.

Nor can this defect be waived by any act of defendant. The policy of the statute is to prevent collusive proceedings between the parties for divorce. If in the power of defendant to waive the provision, the statute may be easily nullified.