Grant v. Grant

• Citation: 12 S.C. 29
• Decision Date: 25 April 1879
• Docket Number: CASE No. 726.
• Parties: ISAAC GRANT v. HANNAH GRANT.
• Court: United States State Supreme Court of South Carolina

12 S.C. 29

ISAAC GRANT

v.HANNAH GRANT.

CASE No. 726.

Supreme Court of South Carolina.

Apr. 25th, 1879.

The act of 1878, repealing all divorce laws in South Carolina, deprived the courts of this state of jurisdiction of actions for divorce a vinculo matrimonii, even though pending at the passage of the act.

Before THOMSON, J., at Kershaw, February, 1879.

This was an action for divorce from the bonds of matrimony, upon the ground of defendant's adultery. It was commenced December 12th, 1878, eight days before the approval of the act of December 20th, 1878, (16 Stat. 719), repealing all laws of this state relating to the granting of divorces. The defendant failed to appear or answer. The parties were married January 4th, 1869. His Honor the Circuit judge dismissed the action, holding that the court could not hear testimony or render judgment under a repealed statute. The plaintiff appealed.

Mr. D. A. Straker, for appellant.

The opinion of the court was delivered by

WILLARD, C. J.

This action was for a divorce a vinculo, on the ground of adultery. The complaint was dismissed on the ground that no such remedy existed by the laws of this state. The constitution (Article IV., Section 15,) declares “that the Courts of Common Pleas shall have exclusive jurisdiction in all cases of divorce.” By the act of 1872 (15 Stat. 30,) a divorce from the bonds of matrimony was allowed on the ground of adultery, but that act was repealed by the act of 1878. 16 Stat. 719. It is contended, however, that the statute of 1878 is void, as tending to impair the obligation of the marriage contract alleged in the complaint, and, also, that the remedy in question is completely granted by the constitutional provision already recited. The marriage was solemnized in 1869, prior to the statute which has been thus repealed, and by such repeal the law now stands in the same position in which it stood at the time of the contracting of the marriage, so that if the general proposition advanced as to the effect of the constitutional inhibition of laws tending to impair the obligation of contracts was sound, still it would be inapplicable to the present case. The general proposition cannot, however, be maintained, as the constitution has regard to questions of property and not of matrimonial status. As this proposition is inapplicable it need not be developed in the present case. As it regards the second proposition, namely, that the remedy exists in an available form under the constitution apart from all legislation on the subject, it must be borne in mind that prior to the adoption of the constitution no such remedy existed in this state. Mattison v. Mattison, 1 Strob. 387. It was argued that the inference from the authorities is that the defect was one of jurisdiction alone and not of legal right, notwithstanding the fact that no court...