Florence Hemenway v. Frank P. Hemenway
| Decision Date | 01 January 1893 |
| Citation | 27 A. 609,65 Vt. 623 |
| Parties | FLORENCE HEMENWAY v. FRANK P. HEMENWAY |
| Court | Vermont Supreme Court |
GENERAL TERM, 1893
Libel for divorce. Heard at the December term, 1892, TAFT, J presiding. Libel dismissed. The libellant excepts.
Exception sustained, judgment reversed, and inasmuch as the trial court has not certified that it found the marriage and residence proved, the cause is remanded.
H F. Brigham for the libellant.
Before ROSS, CH. J., ROWELL, MUNSON AND START, JJ.
ROSS
This case presents the question whether a divorce for wilful desertion can be granted on a petition brought before the three years have expired, when that time has fully expired at the time of the hearing. By R. L. 2,362 it is provided that a divorce from the bonds of matrimony may be granted for wilful desertion for three consecutive years. The cause is not complete until the end of that time. If during that time, even to the last day, the deserting party, in good faith, returns and offers to resume the marital relation, the cause would be defeated. At common law, and usually under statute law, a suit cannot be instituted until the cause is complete. But this statute was so construed when jurisdiction of divorces was in this court as to allow a divorce, if the cause was complete at the time of hearing, although it was incomplete at the time the libel was served. Under that construction the practice grew up of frequently bringing the libel before the expiration of the three consecutive years. This practice has continued to the present time and no practical inconvenience has arisen from it. If the construction was unwarranted, presumably it would have been corrected by legislation. Divorce proceedings are of the nature of session proceedings, and not subject to the ordinary rules of pleading and practice. Usually there are no pleadings except the libel. The libel is not required to conform to the common law rules in regard to declarations. The libel is frequently helped by rule for specifications. The libellee frequently does not appear. When he does appear without any plea he may show any fact that will defeat the libellant, such as condonation or recrimination or former adjudication. Mitchell v. Mitchell, 11 Vt 134; Booth v. Booth, 11 Vt. 206; Blain v. Blain, 45 Vt. 538; Stearns v. Stearns, 10 Vt. 540; Shackett v. Shackett, 49 Vt. 195; Foster v. Redfield, 50 Vt. 285; Burton v. Burton, 58 Vt. 414, 5 A. 281. Fr...
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Trimble v. Trimble
...has acquired jurisdiction on other grounds, judgment may be rendered on a claim falling due during the pendency of the suit. 37 Ark. 605; 65 Vt. 623; 59 Ark. 441; 2 B. Mon. 148. Hence, it is sufficient if year of desertion had elapsed at the time of rendition of the decree. OPINION RIDDICK,......
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