Fisher v. Fisher

• Decision Date: 18 June 1902
• Citation: 52 A. 898,95 Md. 314
• Parties: FISHER v. FISHER.
• Court: Maryland Court of Appeals

52 A. 898

95 Md. 314

FISHER v. FISHER.

Court of Appeals of Maryland

June 18, 1902

Appeal from circuit court of Baltimore city; Henry Stockbridge Judge.

Bill for divorce by Louisa Fisher against William L. Fisher. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BOYD, PAGE, SCHMUCKER, and JONES, JJ.

Oliver C. Warfield, for appellant.

Ruddell & Smith, for appellee.

PAGE J.

The appellant in this case is seeking a divorce a vinculo matrimonii from her husband, the appellee. She charges in her bill that he has been guilty of adultery since the 1st day of January, 1901, with divers women, whose names are unknown to her. The docket entries are not set out in the record, and it does not appear whether he was summoned, or appeared voluntarily without the service of subpoena. The bill was filed on the 9th day of November. The answer of the appellee was filed three days later. On the 14th of November issue was joined, and on the same day leave was granted to the appellant to take testimony. On the 5th day of December the testimony was taken, and returned to the court, and on the same day, by agreement of parties, the cause was "submitted for decree, and the 43d general equity rule" waived, and without argument was referred by the court to the auditor and master. The appellee in his answer admits all the averments of the bill except those contained in the third and fourth paragraphs, to the effect that the appellant "has always been" a chaste wife, and that "since the 1st day of January 1901, the appellee has been guilty of adultery," etc. As to these, "he neither admits nor denies," but "calls for strict proof thereof." All the testimony taken was on behalf of the appellant. None was offered by the appellee. The cross-examination of appellant's witness was brief, and its effect was merely to emphasize what has already been elicited. It is apparent, we think, from the facts we have just recited, that the learned judge below was fully justified in closely scrutinizing this proceeding when it came before him for his action, for the purpose of being assured there were not important facts, other than those that appeared in the return of the examiner, that should have been brought to his knowledge. Accordingly, having knowledge of a certain other case between parties of the same name, in which the bill and a cross bill for divorce had been dismissed, "upon the grounds that the parties were in pari delicto," the judge "sent for the solicitors in the present case, and in open court the said solicitors admitted to the court that the Louisa Fisher and William L. Fisher who are parties to this cause are the same persons who were parties to the antecedent case of Fisher vs. Fisher." He then dismissed the bill, and from the decree the appellant has taken this appeal.

With his decree the judge filed an opinion, a part of which is now here reproduced, viz.: "It is an elementary principle of divorce law that the party seeking the aid of a court of equity for relief from matrimonial bonds must be without fault to be entitled to the interposition of the court, yet in this case the plaintiff, by the findings of this court and the court of appeals, has been guilty of the same offense as that charged against the husband, and is not therefore entitled to the relief sought, if the fact is properly before the court. The former proceedings between the parties and the judgment of the court therein are not mentioned in the pleadings, nor referred to in the evidence, yet they are matters, not merely of the personal knowledge of the court and a part of the records of this court, but also of the court of appeals of this state, and the identity of parties in the two proceedings is admitted by their respective solicitors. ** The present proceeding, however, is one for divorce, and cases of this character are not conducted in all respects, or bound by the same rules, as other causes. In theory, at least, the state is always a party to every divorce proceeding, and since not represented by a solicitor, the duty of watching the proceedings in the interest of the state devolves upon the court; and while in a case of a different character, one in which the state has no interest, the court may not be entitled to take notice of its own proceedings and records, in a divorce proceeding it becomes incumbent upon it to do so. If, in the discharge of its duty, the court is called upon to act in a case for divorce where it appears by its own records and the adjudication of the court of last resort in the state that the complainant is not entitled to the relief of a court of equity, the chancellor who would grant the divorce would be lacking in the duty imposed upon him, and fall short of the obligation due the state." The former proceedings thus referred to will be found reported in 93 Md. 299, 48 A. 833 (Fisher v. Fisher), and by reference to the case in the printed volume it will appear that the appellee in this case filed a bill against the appellant, charging adultery, and praying for a divorce a vinculo matrimonii. The appellant denied the charge, but presented counter charges of the same kind in a cross bill, in which she also asked for a divorce a vinculo. It was held in the court below and in this court that the testimony showed that both of the parties had been guilty of adultery, and for that reason neither was entitled to a divorce. So that, if the record of the antecedent proceedings had been laid before the judge in the regular manner, this case would have been one in which the wife, a proven adulteress herself, comes again into court, and prays for a divorce from her husband upon the ground that he had committed the same offense of which she also had been guilty. She would not, under such circumstances, most certainly, be coming into c...