Cummings v. Cummings, 38312
| Decision Date | 07 April 1952 |
| Docket Number | No. 38312,38312 |
| Parties | CUMMINGS v. CUMMINGS. |
| Court | Mississippi Supreme Court |
Clay B. Tucker, Woodville, for appellant.
Roach & Jones, McComb, for appellee.
This appeal is from a decree of the chancery court of Wilkinson County granting a divorce to the appellee, Enoch McClain Cummings. The appellant assigns as error (1) that the court erred in not granting a continuance on account of the absence of the appellant due to illness; and (2) that the chancellor erred in granting a divorce on the ground of habitual cruel and inhuman treatment. The record herein shows that the appellant, on February 15, 1949, filed a bill for divorce against appellee on the grounds of habitual cruel and inhuman treatment, and for injunctive relief as follows: '* * * that complainant be granted a temporary injunction restraining the defendant from further occupying the dwelling of complainant and further restraining the defendant from interfering with the defendant in the use of said dwelling and in the operation of the Victory Cafe. * * *'
On May 16, 1949, the appellee filed an answer and cross-bill praying for a divorce upon the ground of habitual cruel and inhuman treatment and also prayed for a property settlement. A hearing was held in vacation wherein the property issue was settled and a final decree entered, from which there was no appeal. On August 8, 1950, at the instance of appellant, a decree was entered dismissing her bill of complaint. At the December term of the Chancery Court of Wilkinson County, the appellee appeared on Tuesday, December 5, for trial on his cross-bill seeking the divorce. The appellant was not present and her attorney who filed the bill of complaint and who is her attorney here, stated to the court that he did not know whether he was employed or not and asked for time to communicate with appellant to ascertain her wishes. The court passed the case until Wednesday morning. On that day, the appellant appeared and asked for time to subpoena witnesses and prepare for trial. The court passed the case until that afternoon, but it was not reached for the reason the court was trying another cause. The following day, Thursday, the appellant did not appear but sent a letter to the court from a doctor advising that she was ill and would not be able to leave her home for at least a week. The court continued the case until the next day, Friday, December 8, and after hearing witnesses, including the doctor, on a motion for continuance, the same was overruled and the cause proceeded to trial.
It is true that the doctor testified that due to the appellant's condition it would be detrimental to her health to appear in court, and testified further that she came to his office in Liberty on Wednesday evening, and that she had a four-fifth degree of temperature. Upon being questioned by the court, the doctor testified as follows: 'She told me 'Am I able to go to Court?' I said 'Do you have to go?' and she said 'Not if there's any danger in it'. I said Then she told me 'Will you write a letter to that effect?" He also modified his testimony to some extent by stating that she might permanently impair her health by coming to court. The evidence also shows that the appellant did not have any faver on the day of the trial, that she got up and opened the door at her home for the doctor and that she talked a number of times over the telephone. She did not have a bedside telephone. Her daughter, Mrs. Stafford, who testified in behalf of her father, the appellee, on the merits, said that her mother was not ill, and she based her opinion on the fact that she had talked to her that day over the telephone, although she had not seen her. The evidence shows that appellant lived at Centreville, about a twenty minute drive to the courthouse at Woodville. The chancellor, no doubt, being familar with all the facts in this case applied his own knowledge of what had occurred prior to the time the motion was made, concluded that the appellant did not want a trial and that she was not too ill to attend the trial.
The appellant did not file a formal application for a continuance and she was not required to do so under Section 2737 of the Code of 1942: 'The proceedings to obtain a divorce shall be by bill in chancery, and shall be conducted as other suits in chancery, except that * * * (5) the court shall have full power in its discretion to grant continuances in such cases without the compliance by the parties with any of the requirements of law respecting continuances in other cases.'
An application for a continuance is addressed to the sound discretion of the trial court and in...
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