Craddock's Adm'rm v. Craddock's Adm'r

• Decision Date: 24 March 1932
• Citation: 163 S.E. 387
• Court: Virginia Supreme Court
• Parties: CRADDOCK'S ADM'RM. v. CRADDOCK'S ADM'R.

163 S.E. 387

CRADDOCK'S ADM'RM.

v.CRADDOCK'S ADM'R.

Supreme Court of Appeals of Virginia.

March 24, 1932.

^*

388、

Appeal from Corporation Court of Alexandria.

Bill of review by Blanche R. Craddock against Charles R. Craddock to set aside a divorce decree. A decree was rendered setting aside the divorce decree, and thereafter both parties died. The administrators c. t. a of the estate of Charles R. Craddock moved that the proceeding be revived in their names and that of the administrator of Blanche R. Craddock, and the cause was revived, and the administrators c. t. a., of the estate of Charles R. Craddock appeal.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, GREGORY, and CHINN, JJ.

Albert V. Bryan, of Alexandria, for appellant

Charles Henry Smith and F. G. Duvall, both of Alexandria, for appellee.

EPES, J.

On January 10, 1930, Charles R. Craddock instituted in the corporation court for the city of Alexandria a suit for divorce against his wife, Blanche R. Craddock, on the grounds of adultery, and on January 21st filed his bill. Process was duly served upon the defendant in person in the city of Alexandria on January 10, but she made no appearance in the suit until after final decree had been entered. On March 1st the court entered its decree granting to the plaintiff a divorce a vinculo, prohibiting either party from remarrying for six months, and awarding to the plaintiff the custody of their infant children, Alice and Charles Craddock. The decree contains no provision as to the property rights of the parties.

This decree recites that the cause came on to be heard "upon bill of complaint, process duly executed and the depositions of Janet Coleman Craddock and Charles R. Craddock and the testimony of Charles R. Craddock and E. H. Howard taken ore tenus in open court."

The evidence taken ore tenus is not in the record as certified up, nor is there anything to show that it was reduced to writing.

The decree contains no recital that there was any notice to the defendant to take these depositions, or that the cause had been duly set for trial, or that there was any notice given the defendant that testimony would be heard ore tenus. There is in the record no notice or process of any kind served upon the defendant other than the summons to answer the bill; and neither the caption of the depositions nor the certificate of the notary state or tend to show that there was any notice given to take depositions.¹

On May 23, 1930, Blanche R. Craddock filed her bill of review in said court praying that the decree of March 1st be set aside for error of law appearing on the face of therecord. The only errors of law alleged which we need here notice are that it appears on the face of the record that the defendant was not given notice of the taking of the depositions or of the hearing of evidence ore tenus.

Charles R. Craddock demurred to the bill of review, and the cause came on to be heard on the bill of review, the demurrer, and an examination of the record in the cause. On June 17, 1930, the court entered its decree overruling the demurrer and setting aside its decree of March 1, 1930, the material parts of which read:

"It appearing from the record * * * that the said Blanche R. Craddock was not given notice of the taking of said depositions or the taking of testimony in open court, and that under these circumstances the failure to give notice constitutes an error of law apparent on the face of the record and that the complainant is entitled to the relief prayed for. * * * The court doth adjudge, order and decree that * * * the decree of divorce heretofore entered in favor of Charles R. Craddock be vacated and set aside and the said Blanche R. Craddock be granted the right to file her answer and such other pleadings as she may be advised are necessary; (and) that the testimony in said case be retaken and entire proceedings in said suit reviewed, to which action of the court * * * defendant, by counsel, excepted."

On June 30, 1930, Charles R. Craddock shot and fatally wounded Blanche R. Craddock, and then shot and killed himself.

On November 3, 1930, the administrators c. t. a. of the estate of Charles R. Craddock filed their petition and moved the court that the proceeding had on the bill of review be revived in their names and that of the administrator of Blanche R. Craddock, in order that they might prosecute an appeal to this court from the decree vacating and setting aside the decree of divorce.

In this petition it is alleged that the administrator of the estate of Blanche R. Craddock is contending that she survived Charles R. Craddock a short while, that, the decree of divorce having been vacated and set aside, she was his wife at the time of his death, and that she was therefore entitled at her death to a one-third part of the personal property of which he died possessed. The petition further sets forth that Charles R. Craddock died owning a substantial amount of personal property, but makes no mention of his owning any real property.

Upon a hearing on this petition, the court found that the facts set forth in the petition were true, and entered its order reviving the "cause made by the said bill of review" in the names of the administrators of the estates of both parties. The cause is here on an appeal granted to the administrators of the estate of Charles R. Craddock from the decree set ting aside the decree granting the divorce. The appeal presents two phases: The first presents the question, After the death of the parties, can this appeal be prosecuted?

We have then this case and this question: A decree for a divorce a vinculo was rendered in favor of a husband against his wife, which carries with it, as a legal incident of the divorce, the extinguishment of her marital rights in his property. Section 5111, Code Va. 1919, as amended by Acts 1927, Ex. Sess., c. 85. This decree has been vacated and set aside by a decree entered upon a bill of review filed by the wife for error apparent on the face of the record. Before the time for an appeal from the second decree expired, both the husband and wife have died. Did the whole cause of action so completely abate with the death of the husband, and of the wife, as to render an appeal from the second decree, in so far as it affected the property right of the parties, unavailable to the heirs or personal representative of the husband?

There is some conflict on this question, and the answer presents difficulties whether it be yes or no. However, the weight of authority and the better reasoning, we think, support the view that the heirs, devisees, personal representative, or other person having an interest in the deceased husband's property which is affected by the decree setting aside the decree of divorce, may have the cause revived in their name and prosecute an appeal, notwithstanding the wife has also died since the decree was entered. 57 L. R. A. 583, at pages 587 and 603, note; 12 L. R. A. (N. S.) page 891, note; 30 A. E. R. 1466, at page 1469 et seq., note; 40 A. L. R. 1118, note. See, also, Gumming v. Cumming, 127 Va. 16, 102 S. E. 572. The authorities on the subject are so fully collected, digested, and reviewed in the notes above cited that we deem it not necessary to list or review them here.

In discussing a case in which the husband died after an appeal had been allowed him from a decree for divorce against him, the court in Nickerson v. Nickerson, 34 Or. 1, 48 P. 423, 54 P. 277, said: " * * * Where the consequences of the divorce are such as affect the property rights of the parties to the suit, the heirs or personal representatives may have such an interest in the litigation as that the cause will survive, not for the purpose of continuing the controversy touching the right of divorce within itself, but for the ascertainment of whether the property has been rightfully diverted from its appropriate channel of devolution."

That the same rule is applicable where death occurs before petition for appeal is filed, see authorities cited in above notes, among others Chatterton v. Chatterton, 231 111. 449, 83 N. E. 161, 121 Am. St. Rep. 339; McNeil v. McNeil, 95 C. C. A. 485, 170 P. 289; Strickland v. Strickland, SO Ark. 451, 07 S. W. 659.

It has been said that, though this is the rule where the death of one of the parties occurs pending an appeal from a judgment or decree granting a divorce, the rule is otherwise where a divorce has been refused. 57 L. R. A. page 603, note. This may be true where the appeal is from a decree refusing a divorce entered in the original suit, though we do not here pass upon that question. But, where the decree is in the original suit granted a divorce and the appeal is from a decree, entered upon a bill of review, setting aside the divorce decree, we see no good reason why the rule above stated should not be applied.

This brings us to the second phase of the appeal, which presents the major question here involved: Did the trial court err in holding that there was error apparent on the face of the record, and in setting aside the decree of divorce on that ground?

The appellant contends that the court erred in this respect for the following reasons:

(1) The error alleged was not apparent on the face of the record-

(2) The error alleged, if apparent on the face of the record, was not sufficient in law to justify the vacation of the decree for divorce.

(3) No exception was taken to the alleged errors in the original cause.

Before entering upon a discussion of these assignments of error, it will be helpful to see what an appeal in chancery is and what constitutes the record in a chancery cause.

An appeal in a chancery cause brings up the whole case for determination de novo upon the record (the whole record) made in the trial court, but under the Virginia statutes permits the consideration of nothing extraneous the record, and under the rules of this court the issues which will be determined on an appeal are generally limited to...