Hatfield v. Hatfield
| Decision Date | 20 May 1930 |
| Docket Number | 6676. |
| Citation | 153 S.E. 493,109 W.Va. 212 |
| Parties | HATFIELD v. HATFIELD. |
| Court | West Virginia Supreme Court |
Submitted May 14, 1930.
Syllabus by the Court.
Court has duty of disposing of seasonable motion to remove suit to another circuit before proceeding to trial on merits (Code c. 128, § 1).
Where a motion is seasonably made by a party to a suit to remove the same to another circuit on any of the grounds assigned by section 1, c. 128, Code, and such motion is accompanied by a petition, duly verified by affiant, setting out such grounds for such removal, it becomes the duty of the court to dispose of such motion before proceeding to trial of the cause on its merits.
Appellate court will not treat action of trial court in hearing cause without determining motion for removal under assurance of opposite party that party making motion had abandoned case as overruling of motion, but will reversed and remand.
Where however, the court is induced to hear the cause without first determining such motion, under an assurance of the opposite party that the party making such motion has abandoned the case, which assurance turns out to be wrong, this court will not treat such action in hearing the case as virtually overruling such motion, but will reverse the decree entered therein under such assurance, and remand the cause that the motion for removal may be heard and determined according to the right of the matter.
Court in divorce suit has duty of making allowance to wife on application for money to prosecute suit and for maintenance during litigation.
In a suit for divorce, it is the duty of the circuit court to make an allowance to the wife, where she makes application therefor, for money with which to prosecute her suit and for her maintenance during such litigation.
Additional Syllabus by Editorial Staff.
Failure of plaintiff in divorce suit to deny charges of adultery and cruelty in cross-bill precluded relief (Code, c. 125, § 35, and c. 64, § 8).
Appeal from Circuit Court, Logan County.
Suit by T. S. Hatfield against Sadie Hatfield, wherein defendant filed an answer in the nature of a cross-bill. Decree for plaintiff, and, from an order refusing to set the decree aside, defendant appeals.
Reversed and remanded.
W. E. R. Byrne, of Charleston, for appellant.
Coleman A. Hatfield, of Logan, for appellee.
The questions raised by this appeal are purely procedural. The evidence is not before this court. This situation makes a rather full statement of the steps taken necessary.
T. S. Hatfield instituted a suit for divorce from his wife, Sadie Hatfield, in November, 1928. In the bill he charged his wife (appellant herein) of having committed adultery with divers men, and asked the custody of their three children. At the January term following, the appellant filed an answer in the nature of a cross-bill in open court, and, at the same time, a petition and motion under section 1, c. 128, Code, for the removal of the cause to another circuit, the ground for such removal being fully set out in said petition, which was verified by her affidavit. On February 21, 1929, the plaintiff filed in open court a paper designated "The reply of T. S. Hatfield to the petition of Sadie Hatfield," praying, among other things, that the cause be referred to the divorce commissioner of Logan county, and that he be directed to take and return all testimony in said cause, whether the same be taken before him or a divorce commissioner in some other county, and that such divorce commissioner to whom the report was directed be instructed further to report all such testimony pertaining to the suit back to the circuit court of Logan county.
Sadie Hatfield, having failed in her effort to employ counsel in Logan county, employed a Charleston attorney, who entered into correspondence with plaintiff's attorney, who resided at Logan, concerning the divorce proceedings. By letter of February 20, 1929, counsel for the plaintiff informed opposing counsel that he was filing a general replication to the answer in the nature of a cross-bill, and also a reply to the petition for removal, saying: "The plaintiff expects to resist the motion for a removal of this cause from Logan County, and I would like to agree with you on a time for arguing this motion before our circuit court." The Charleston attorney's reply was to the effect that he concurred in the suggestion, as to the argument of the motion, that he "had no doubt that a time for the argument could be agreed upon," and requested an early reply. According to counsel for the appellant, he heard nothing more from the case until April 2, 1929, when, upon communicating with the attorney for the plaintiff by long-distance telephone with the intention of arranging with him a time for the argument of his motion for removal, he was met by the latter with a statement to the effect that the case had been tried the night before, and that a decree had been entered granting to the plaintiff a divorce.
On April 6, 1929, the appellant's attorney filed a motion and petition in writing, asking that said decree be set aside, and that, upon the same being done, the court would remove the cause to another circuit as prayed for in the former motion and petition. An order was entered April 20, 1929, refusing to set the decree aside.
The decree of April 2, 1929, brings the case on to be heard upon plaintiff's bill, the exhibits thereto, and the evidence taken on plaintiff's behalf in chambers, and omits any reference to the appellant's answer and cross-bill and her motion and petition for a removal of the cause filed as aforesaid. In her cross-bill the appellant had alleged that she had been driven from her home by the plaintiff and rendered homeless and destitute of funds for her livelihood; that the plaintiff was a man of great wealth, and had a large annual income, and prayed the court to grant her an order directing the plaintiff to provide a sufficient fund for her maintenance pendente lite, and to enable her to make her defense against the bill filed by the plaintiff and to prosecute her cross-bill for divorce. After an appeal had been allowed to this court, appellant's counsel again moved the circuit court of Logan county to enter an order requiring the plaintiff to provide necessary funds for printing the record and other expenses incident to prosecuting such appeal, but the court made no order therein concerning such motion. On motion she was granted leave under the statute by this court to have the cause heard on the original papers.
The issues involved in the case and raised in the court below were as follows: (1) The removal of the cause to another jurisdiction; (2) the allowance of alimony and suit money, as prayed for in the...
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