Dwire v. Dwire

• Decision Date: 24 March 1913
• Citation: 86 A. 164,86 Vt. 474
• Parties: DWIRE v. DWIRE.
• Court: Vermont Supreme Court

86 A. 164

86 Vt. 474

DWIRE

v. DWIRE.

Supreme Court of Vermont. Rutland.

March 24, 1913.

Exceptions from Rutland County Court; W. H. Taylor, Judge.

Action for divorce by Alice M. Dwire against Harry C. Dwire.Decree for complainant and defendant brings exceptions.Reversed and remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Chas. L. Howe, of Rutland, for libelant.

T. W. Moloney, of Rutland, for libelee.

WATSON, J.This cause, a suit for divorce, was heard upon the evidence at a certain term of the county court; the presiding judge and the two assistant judges being present.After full hearing the court entered an order of continuance generally in the cause, making no other order and no findings whatever.

The record before us shows, by way of facts stated by the assistant judges at the following term, that at the term of the hearing it was the opinion of the court that a case had been made out by the petitioner on the ground of intolerable severity; but, hoping that a reconciliation could be effected between the parties(both being young) if a bill was not then granted, the cause was ordered continued generally.This was in accordance with a course of procedure in divorce cases, which in the discretion of the court has long obtained in this state, when the circumstances are such that the interests of the parties, or of the public, may seem to be better conserved thereby, which several interests must be regarded in the administration of the law.

The continuance may be general, or it may be special, and accompanied with an order for further proceedings, as, for instance, the production of more evidence, or the testimony of the libelee, or some particular person not then at hand.In the latter case, it should seem that at the succeeding term, the court being of the same judges, the trial may proceed from where it left off when the continuance was ordered.SeeFoster v. Red-field, 50 Vt. 285.But when the continuance is general, with no findings of fact placed upon record, as in the case at bar, it is tantamount to a refusal to proceed further with that hearing, or to make any decree on the evidence received therein.It leaves the case as if no hearing on the merits had been had, and any decree rendered at a subsequent term must be as the result of a trial de novo.This is the practical effect of such procedure, with a general continuance in cases of this character, and acting in the interests of the public, as it stands related to, and affected by, the marital relations, we are not disposed to give it an effect which will permit the granting of a divorce at a subsequent term without a hearing anew.

It is the duty of the trial court in such cases wisely to exercise its judicial discretion, to the end that society and the public receive no detriment in proceedings affecting the institution of marriage.Blain v. Blain, 45 Vt. 538;Foster v. Redfield, 50 Vt 285;Burton v. Burton, 58 Vt. 414, 5 Atl. 281;Patch v. Patch, 86 Vt. 225, 84 Atl. 815.It follows that the action of the assistant judges, in rendering a decree at the subsequent term without a fresh hearing upon the evidence, is not sustained.

It is said, however, that the exceptions are not signed by the "presiding judge," and consequently they should be dismissed on the libelant's motion.But we do not think this position is well taken.The judge who presided at the term when the evidence was heard did not preside at the subsequent term when the...