Burton v. Burton

Decision Date24 July 1886
Citation5 A. 281,58 Vt. 414
CourtVermont Supreme Court

Libel for divorce. Heard on the defendant's demurrer to the libellant's surrejoinder, September Term, 1885, ROYCE Ch. J., presiding. Demurrer overruled. The libel stated cruelty and adultery as causes for the divorce. The plea set forth the former divorce proceeding between the same parties the libel, its dismissal, etc., and alleged that "the pretended offenses set forth in this present libel are the same identical offenses as are mentioned and alleged to have been committed in said first libel." * * * "And said court, upon full hearing and trial of said cause upon its merits and upon the facts in controversy, did determine adjudge, and decree that said libel be dismissed, and the same was so dismissed upon its merits, as by the records of the proceedings, judgment, and decree remaining in said court more fully appears, which said judgment still remains," etc. The replication alleged that the first libel was "dismissed without prejudice to the said Oscar A Burton's right to bring and prosecute another libel for the same causes mentioned in said previous libel, or any of them, and fully reserving his right so to do, [all of which fully appears and is shown by the record of said court, which the said libellant is ready and offers to produce,] and this he, the said Oscar A. Burton, is ready to verify." The words enclosed in brackets is the interlineation objected to. The defendant's rejoinder is sufficiently stated in the opinion. Surrejoinder: * * * "because he saith that the said supposed judgment of dismissal of said former libel in said plea mentioned, and which said supposed judgment of dismissal was rendered and entered on a day out of term and after the adjournment without day of said September Term of said court, was by the said court intended to be without prejudice to the right of the said Oscar A. Burton to file and prosecute another libel for the same causes mentioned in said former libel, and was, by order of said court, in fact so entered upon the docket of said court by the clerk thereof, as appears by the records and proceedings of said court therein remaining; without this, that the said reservation of the said Oscar A. Burton's right to file and prosecute another libel for the same causes expressed by the entry 'without prejudice' was done by order of only one of the judges of said court, and this he is ready to verify; wherefore," etc. The demurrer assigned: 1. That said judgment of dismissal was rendered and entered on a day out of term, etc. 2. That said court intended said judgment to be without prejudice, etc. 3. That that entry was in fact made by order of the court, and not by the order of only one of the judges. 4. That said surrejoinder offers an issue upon a matter not issuable or capable of trial, viz.: That the court as matter of fact "intended" by the judgment rendered. 5. That such issue tendered is an immaterial issue. 6. If it be claimed by the said Oscar A. that said surrejoinder is not subject to the objections above set forth, then that the same is uncertain and ambiguous and doubtful in meaning, and not capable of being answered unto, except in the alternative, or hypothetically. The defendant made a motion to strike out the amendment to the libellant's replication. The motion was dismissed.

Judgment affirmed and cause remanded.

Roberts & Roberts and H. Ballard, for the defendant.

The plea sets up that the very matters of the libel have been once adjudicated. Upon the principle of res judicata the sufficiency of this plea cannot be fairly questioned. The statute--R. L. s. 2368--is, that the judges of the County Court in divorce cases shall be triers of questions of fact as well as of law. Thus, when the plea alleges the court, "upon full hearing and trial of said cause upon its merits and upon the facts," etc., this averment includes a finding by the judges that the causes of divorce were not proved; hence the only proper entry to express the result as a conclusive determination of the cause was the one employed, "Libel dismissed;" 2 Dan. Ch. 175-6, 638; Story Eq. Pl. 792; Perine v. Dunn. 4 Johns. Ch. 140; Foote v. Gibbs, 1 Gray, 412. The replication, taken by itself, is not a sufficient answer to the plea. In considering the replication, the attempted amendment of it should be stricken out as irregularly interpolated. The court has no power, after the hearing and determination of a divorce cause upon its merits, to nullify its judgment, or decree, by adding to the decree of dismissal the words "without prejudice." These words are appropriate in chancery only in case the dismissal is "for some cause not embracing an adjudication upon the merits." Bigelow v. Winsor, 1 Gray, 301; Foote v. Gibbs. Ib. 412; Borrowscale v. Tuttle, 5 Allen, 377. The questions of fact have once been determined; and that determination is final. R. L. s. 2368. Bostwick v. Abbott, 40 Barb. 331, decides that after a case at law has been decided against the plaintiff on the merits, the court has no power to destroy its effect by annulling it so as to give permission to the plaintiff to bring another suit. See Durant v. Essex Company, 7 Wall. 107; Audubon v. Insurance Company, 27 N.Y. 216. "We know of no practice, or authority, by which a court can thus qualify a judgment." Fisher v. Williams, 56 Vt. 586; and see Wing v. Woodward, 56 Vt. 723. It is understood that this very question has once been distinctly decided at General Term, in a case not reported, that a judgment cannot be qualified by an entry "without prejudice." If a judgment for the defendant may be so qualified, why not a judgment for the plaintiff? This in a divorce proceeding, where the judgment fixes the status of the parties as to all the world, would be awkward. Every consideration of propriety and public policy is against the establishment or recognition of such a claim in such a case. In a criminal case a nolle prosequi entered after a jury is impanneled and sworn, operates as an acquittal, it is said. 1 Whart. Cr. Law, s. 544. The consequences to a woman divorced for adultery are so serious (R. L. 2384) that something of a like strictness should be applied in her behalf.

L. P. Poland and E. R. Hard, for the libellant.

A dismissal "without prejudice" is not a bar to a new libel for the same causes. 2 Bish. Mar. & Div. s. 767; Freem. Judg. s. 270; Thurston v. Thurston, 99 Mass. 39; Brown v. Brown, 37 N.H. 536; Ashmead v. Ashmead, 23 Kans. 262; Gove v. Lyford, 44 N.H. 525. If the surrejoinder is defective, the defects are of form merely. Argumentativeness, duplicity, uncertainty, and a wrong conclusion, are only defects of form. Chit. Pl. (16th Am. ed.) 66, 251, 260, 585. But the strict rules of pleading applicable to common law cases have not been followed in libels for divorce. 2 Bish. Mar. & Div. s. 345; Blain v. Blain, 45 Vt. 538; Shackett v. Shackett. 49 Vt. 195; Vance v. Vance, 17 Me. 203; 7 Pick. 217. If the rejoinder is bad in substance, the surrejoinder should be adjudged sufficient, for a demurrer reaches back in its effect through the whole record. Gould Pl. 574; Vt. Dig. 536. The rejoinder is manifestly and substantially defective in two respects. 1. It attempts, by matter in pais, to contradict the accuracy of the record vouched in the replication, by alleging that the words, "without prejudice," were inserted out of court and without proper authority. The record cannot be thus attacked. Dimick v. Brooks, 21 Vt. 569, 578; Lapham v. Briggs, 27 Vt. 26, 31, 2. The rejoinder does not answer, or tender any issue under the only material averment of the replication, viz., that the dismissal was without prejudice.



In divorce proceedings in this State, but little attention is paid to the pleadings. The procedure in such cases has not been regarded as subject to the rules and forms of pleading that prevail in common law causes. Usually there are no pleadings, even in contested libels. The practice certainly does not require it. Anything that tends to show that the libellant is not entitled to a divorce for the causes alleged, is admitted in evidence; and a former adjudication may be shown in evidence by a copy of record without special plea. Shackett v. Shackett, 49 Vt. 195; Blain v. Blain, 45 Vt. 538.

But inasmuch as the counsel have resorted to common law pleading, and the case comes to this court on the question of pleading, the same must be considered here.

The pleadings close with the defendant's demurrer to the libellant's surrejoinder. As this demurrer reaches back over the whole record to the first defect in substance in the pleading, no defects of form being reached by it, except such as appear in the surrejoinder itself, and are especially noted as causes of demurrer,--we must examine the whole record.

The defendant's plea to the libel sets up in bar, that the very matters of the libel have been once adjudicated upon a like libel of the libellant, setting forth the same causes and facts, brought to the County Court for the county of Chittenden, and there tried and determined upon its merits, with judgment for the libellee dismissing the libel, as appears of record.

The libellant, in his replication, avers in substance that said former libel is not a bar, because he says the dismissal of the former libel mentioned in said plea was a dismissal without prejudice to the libellant's rights to bring and prosecute another libel for the same causes mentioned in said previous libel, and vouches the record.

The defendant contends that the replication is not a sufficient answer to the defendant's plea, for the reason that the County Court, in the exercise of the special jurisdiction given it in...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT