Harrison v. Harrison
| Citation | 84 A. 57,117 Md. 607 |
| Parties | HARRISON v. HARRISON. |
| Decision Date | 29 February 1912 |
| Court | Court of Appeals of Maryland |
Appeal from Circuit Court No. 2 of Baltimore City; H. Arthur Stump Judge.
Bill for divorce by Mary A. Harrison against George Harrison. From a decree for defendant, plaintiff appeals. Reversed and remanded.
Thomas J. Mason, for appellant.
T Scott Offutt and Z. Howard Isaac, for appellee.
In this case a bill for divorce a vinculo matrimonii was filed by Mary A. Harrison against George Harrison, her husband. In the bill she alleges (1) her residence in this state for all of her life, and that at the time of the filing of the bill both herself and husband were residing in the city of Baltimore (2) that the parties have seven children; (3) abandonment and nonsupport by the husband; (4) cruel and vicious conduct on the part of her husband; (5) that her husband has been guilty of adultery; and (6) the means or property of the defendant. The prayers of the bill are for a divorce a vinculo, care and custody of minor children, permanent alimony, and alimony pendente lite and counsel fees. Upon the filing of the bill the circuit court No. 2 passed an order nisi, allowing counsel fees and alimony pendente lite.
The defendant, having been summoned, appeared specially by counsel and filed three pleas, the first and third pleas being to the jurisdiction, in which the defendant set forth that the residence of the parties to the suit was in Baltimore county, and not in Baltimore city, and the second was in the nature of a plea of lis pendens, alleging that a proceeding was pending in Baltimore county, instituted by the plaintiff for the purpose of securing a divorce a mensa, in which a counsel fee had been allowed and alimony pendente lite. On the same day and at the same time as the filing of the pleas the defendant filed in proper person an answer, which he claimed to be to the order nisi of the court, and in which it is said that the defendant appears and answers for the purpose of filing the answer only.
The first question that arises is one of equity pleading as to the effect of the answer so filed. It has been the recognized law of this state for a long time that, "if a defendant answers to anything which he has pleaded, he thereby overrules his plea, for his plea is only why he should not answer, so that, if he answers, he waives his plea to the same matter." Hannah K. Chases Case, 1 Bland, 206, 17 Am. Dec. 277; Frederick v. Frederick, 88 Md. 662, 42 A. 218; Morton v. Harrison, 111 Md. 540, 75 A. 337. And the rule thus recognized is in strict accord with the generally recognized rule of equity pleading. Story's Eq. Pleading, § 688.
With this rule in mind, what does the answer cover? In the first paragraph it alleges the filing of the bill for divorce a mensa in Baltimore county and the order of the court of that county directing the payment of alimony pendente lite and counsel fees, thus setting up by way of answer the same matter as that contained in the second of the pleas filed. In the second paragraph of the answer is contained a specific denial of the allegations of the third, fourth, and fifth paragraphs of the bill of complaint. Not one of these paragraphs in any way related to the question of alimony, and there was nothing in the order nisi passed by the court on the 15th of June which could even inferentially be construed as requiring the defendant at the time to make answer to these paragraphs. The third, fourth, and fifth paragraphs all relate to the resources of the defendant or of the plaintiff, being thus germane to the order of June 15th, and also in answer to the allegation of the sixth paragraph of the plaintiff's bill; and by the sixth and last paragraph of the defendant's answer he refers to and relies upon his plea to the jurisdiction of the court, thus raising, inferentially at least, by his answer, the question of jurisdiction. From the recital of the allegations of the bill and the answer of the defendant it will be apparent that, unless it be upon the question of jurisdiction, his answer has covered the matter alleged in the bill, even where in no way related to the order nisi of the court, and therefore by this answer he must, with the reservation before named, be held to have waived his pleas.
Whether the recital in the sixth paragraph of the answer should properly be treated as a waiver of the pleas to the jurisdiction need not now be determined, for the reason that by the pleas or answer or both the jurisdiction of the circuit court No. 2 to hear the matters in issue is distinctly raised, and the testimony upon the question having been taken and been embodied in the record may be properly now considered and disposed of.
Article 16, § 35, of the Code, provides that "any person desiring a divorce shall file his or her bill in the court either where the party plaintiff or defendant resides." The question of jurisdiction which is presented is whether both or either of the parties had, at the time of the filing of the bill, such a residence in the city of Baltimore as the provision of the Code contemplates. The term "residence" is one which is used to signify different things. Sometimes it is to be construed as meaning the domicil of a party, and in others simply to indicate an abiding place for the time being without reference to domicil. The same term is to be found in the statute of this state relating to the right to be registered, and in all of those cases the construction has been uniform, giving to the term the legal significance of domicil. Howard v Skinner, 87 Md. 556, 40 A. 379, 40 L. R. A. 753. No reason is apparent why a more lax construction should be given to the word as it is used in the statute with regard to divorce, in view of the long-settled policy of this state to discourage rather than to encourage such proceedings. Treating the word "residence" as used in section 35 as the equivalent of domicil, a consideration of the facts as testified to is all that is necessary in order to reach a determination. The parties to this suit resided in Baltimore county from 1880, and at Howard Park from 1908 to 1911. In February of 1911 the defendant left the home where he and his wife had been living, and came to Baltimore city. After boarding for about a week at the Raleigh, he rented a room on North Carey street. The plaintiff on the 8th May, 1911, left the house in which she had been living in Baltimore county, and rented and occupied with her children a dwelling on Thomas street in Baltimore city. In December, 1910, the plaintiff had filed her bill in Baltimore county for a...
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