Kendall v. Kendall
| Decision Date | 12 October 1948 |
| Docket Number | 16136. |
| Citation | 50 S.E.2d 191,213 S.C. 471 |
| Parties | KENDALL v. KENDALL. |
| Court | South Carolina Supreme Court |
Tompkins & Tompkins, of Columbia, and Harry D. Reed, of Waycross Ga., for appellant.
C. T. Graydon and Robinson & Robinson, all of Columbia, for respondent.
On or about September 18, 1939, the Honorable E. C. Dennis, then presiding in the Fifth Judicial Circuit, passed a decree as a result of an action begun by appellant (at that time the wife of respondent), wherein and whereby he ordered the respondent to pay to the appellant the sum of one hundred dollars ($100) per month for her support and maintenance for the term of sixty (60) consecutive months or until the death of either the plaintiff or defendant (appellant and respondent here respectively) or the remarriage of appellant prior to the expiration of the said time. This decree further provided for the payment of counsel fees in behalf of appellant and for the payment of costs of the action. The decree contained a provision that the action should remain open for such administrative orders as the circumstances might require. Upon respondent's faithful performance of the several obligations imposed upon him by said decree, he was, in express terms, forever released and discharged from other and further obligation to support and maintain plaintiff.
Although not referred to in the decree, the substance of which is above set forth, the decree follows with exactitude the provisions of an agreement by and between appellant and respondent of identical date. The decree was issued on motion of appellant's attorney with the appended consent of both defendant and his counsel.
In July, 1946, the appellant, Edith S. Kendall, petitioned the Court of Common Pleas for Richland County (the same Court from which the decree hereinabove described issued) to reopen that decree and thst she be granted additional support and maintenance from the respondent for the reasons alleged in the petition. Upon this verified petition a rule to show cause and a temporary injunction were issued, the effect of which was to restrain respondent from disposing of, selling or encumbering a certain house and lot located in Columbia until further order of the Court, and requiring respondent to show cause on a subsequent date why this injunction should not be continued until the trial of the cause on its merits and why he should not be required to pay appellant, during the pendency of the cause, alimony and suit money and counsel fees.
To this rule the respondent made return wherein he plead the marriage of the parties and subsequent separation and the action which resulted in the decree of September 18 1939, along with an annexed copy of the said decree. He also prayed reference to the contract upon which the decree was apparently based and annexed copy thereof to his return. The respondent set up the decree and contract referred to as a bar to petitioner's right to the relief sought, and furthermore asserted that in the interim between the decree of September 18, 1939, and the institution of the present proceeding, the respondent prosecuted an action against appellant in Richmond County, Georgia, which resulted in a divorce decree, which incorporated Judge Dennis' decree, copy of which was likewise attached to respondent's return. The respondent alleged that the action of the Richmond County, Georgia, Court and the decree issued therefrom resulted in a dissolution of the bonds of matrimony, which theretofore had existed between respondent and appellant,...
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