Dixon v. Dixon

• Decision Date: 21 October 1913
• Citation: 79 S.E. 1016,73 W.Va. 7
• Parties: DIXON v. DIXON.
• Court: West Virginia Supreme Court

79 S.E. 1016

73 W.Va. 7

DIXON v. DIXON.

Supreme Court of Appeals of West Virginia.

October 21, 1913

Submitted September 12, 1912.

Syllabus by the Court.

An application, under section 13, c. 64, Code 1906, for an absolute divorce, subsequent to a decree of divorce a mensa et thoro, must be by petition or bill averring grounds for relief, and upon the usual process and proceedings at rules as prescribed by the ordinary principles of equity practice.

Depositions taken before the filing of the bill or other pleading, and before process or appearance, cannot be read on the final hearing of a cause. They should be suppressed on the motion of the opposite party.

Nor can depositions taken on a legal holiday, under a notice specifying that day, be read on final hearing, except with the consent of parties; the notice, by virtue of chapter 15L, Code 1906, being taken to intend the following day.

Appeal from Circuit Court, Fayette County.

Action by Samuel Dixon against Annie Dixon. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Osenton & Horan, of Fayetteville, and Couch & Briggs, of Charleston for appellant.

Dillon & Nuckolls, of Fayetteville, for appellee.

LYNCH J.

This is a proceeding instituted by plaintiff, under section 13, c 64, Code, for an absolute divorce, pursuant to a prior decree granting him a divorce a mensa et thoro. From a decree awarding the relief sought, the defendant appeals. By her assignments of error, she presents two interdependent questions for determination: Whether the circuit court had jurisdiction to pronounce the decree complained of; and whether the depositions read on behalf of plaintiff should have been suppressed as irregularly taken.

As disclosed by the record, the original suit was instituted in April, 1903. A final decree therein was entered October 1 1904, granting plaintiff a limited divorce, awarding to each parent custody of certain of the minor children, and making provision for alimony of $100 per month. It was "further ordered that the plaintiff pay the costs of this suit, and that the same be stricken from the docket." Apparently there was neither pleading nor proof sufficient to support this decree. But, no appeal having been taken therefrom, it cannot now be disturbed. Chapman v. Chapman, 70 W.Va. 522, 74 S.E. 661. Nothing further was done in the cause until September 1, 1911, when the plaintiff caused to be served upon the defendant two notices--one that he would, on the 19th of that month, apply to the circuit court "for an absolute divorce from the bonds of matrimony"; the other that he would, as he in fact did, on September 4th ensuing, take depositions in support of such application. On the day designated in the first notice the defendant appeared specially and moved to quash the notice "on the ground that there was no suit pending." The motion was overruled. The defendant then moved to suppress the depositions of plaintiff filed on the previous day; but that motion was likewise overruled. "Thereupon," as the order of the court of September 19th recites, "the plaintiff tendered his said petition and application for an absolute divorce from the defendant, notice of which had been duly served on the defendant, which said notice and petition are ordered filed." The petition recited the former proceedings in 1904, averred compliance by plaintiff therewith and the absence and improbability of a reconciliation, and prayed for an absolute divorce. By the same order the court, without further pleading or proof, granted the prayer of the petition, and "decreed that the said plaintiff continue to carry out, perform, and comply with the said decree of October 1, 1904, in respect to the support and maintenance of the defendant and in all other respects."

Appellant assigns only two grounds of error, either of which, in our opinion, warrants reversal of the decree entered September 19, 1911: First, lack of proper notice; and, second, the court's refusal to suppress plaintiff's depositions.

The only information afforded appellant of the relief sought was an informal, unofficial notice, signed by appellee, that on the day named he would ask a decree for absolute divorce from her. It did not summon her to answer any pleading filed or to be filed. No pleading was in fact tendered or filed until the day and at the time of the entry of the decree granting relief. The appellee seeks to defend this informal method on the ground that the statute does not specifically require any process or pleading; that it only requires an "application." It is true there is no prescribed procedure, no definite direction in the statute. But its failure to prescribe or direct does not authorize each suitor to determine for himself, contrary to the regular and orderly procedure, the course he may pursue to attain his purposes. Such liberality would be subversive of and discordant with all the requirements of orderly procedure, and therefore cannot be tolerated. All proceedings for divorce, or the annulment or affirmation of marriages, are to be by suits instituted and conducted as other suits in equity, with the exception noted in sections 7 and 8, c. 64, Code. Therefore the rules of chancery practice must be observed; otherwise the proceedings are abortive. "It is within the power of courts, in administering statutes, to adopt such practice or procedure as will attain the ends of justice, avoid surprise and give parties opportunity to answer charges seeking to impose liability upon them. Where a statute allows a judicial proceeding to a man's prejudice, though it do not provide for notice, it is understood to intend it, as no judgment can be given under it without process, and proce ss is necessary. The statute does not dispense with notice." Goff v. Price, 42 W.Va. 384, 389, 26 S.E. 287; Cooper v. Bennett, 70 W.Va. 110, 73 S.E. 260; Railroad Co. v. Railroad Co., 17 W.Va. 812. When thus speaking in the Goff Case, Judge Brannon had under consideration the provisions of section 35, c. 125, Code, allowing answers to be filed as cross-bills, setting up new matter, and praying relief thereon; the section being silent as to notice. Again, it has been said that "at the door of every temple of law in this broad land stands justice with her preliminary requirements upon all administrations." So that, except where a statute definitely provides the necessary procedure, the courts will adopt that which will best serve the legislative intent and protect the personal and property rights sought to be affected. As was said in Phillips v. Phillips, 24 W.Va. 591: "Where a petition is filed in a divorce case, under section 11, c. 64, Code, unless the defendant to the petition appears thereto in court, it should be sent to rules for process to be issued thereon and to be matured for hearing." There the court was dealing with the rights of parents to the custody of their minor children subsequent to the dissolution of marriage. The course pursued was by petition, as prescribed; but the court found in the section a requirement for process to answer pleadings at rules and the usual proceedings thereat. Again, in Railroad Co. v. Railroad Co., supra, this court said: "Where a statute authorizes a legal proceeding against any one, and does not expressly provide for notice to be given, it is implied that an opportunity shall be offered him to appear in defense of his rights, unless the contrary clearly appears." It there discusses the necessity for notice...