Lickle v. Boone

• Citation: 51 A.2d 162,187 Md. 579
• Decision Date: 06 February 1947
• Docket Number: 56.
• Parties: LICKLE v. BOONE.
• Court: Court of Appeals of Maryland

51 A.2d 162

187 Md. 579

LICKLE v. BOONE.

No. 56.

Court of Appeals of Maryland

February 6, 1947

Appeal from Circuit Court, Baltimore County; J. Howard Murray Judge.

Suit by A. Gordon Boone against Edith Flint Boone for absolute divorce on ground of adultery, wherein William F. Lickle, who was named as co-respondent, intervened. From decree granting divorce, William F. Lickle appeals.

Appeal dismissed.

M William Adelson, of Baltimore, (S. Raymond Dunn, of Baltimore, on the brief), for appellant.

Kenneth C. Proctor and John Grason Turnbull, both of Towson, on the brief, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

DELAPLAINE Judge.

A. Gordon Boone, resident of Baltimore County, brought this suit on February 21, 1946, to obtain an absolute divorce from his wife, Edith Flint Boone, resident of Delaware. The bill of complaint alleged that defendant had committed adultery with William F. Lickle. Defendant did not appear. On April 15 Lickle filed a petition alleging (1) that complainant was preparing to proceed ex parte to produce evidence, which, if not subjected to cross-examination in open court, might seriously injure petitioner's reputation and career; (2) that since petitioner was specifically named in the bill of complaint, he was entitled to defend against the unfounded and unjust accusation made against him; and (3) that his only means of making such defense was either by intervention in the proceedings as a party defendant or by having the cause heard in open court and thus being given an opportunity through counsel to cross-examine any witnesses offered by complainant and also to produce evidence to refute the charge made against him. Complainant filed an answer to the co-respondent's petition consenting to his intervention. On April 22 the Court, acting upon the petition and answer, passed an order making the co-respondent a party defendant 'for the purpose of permitting him an opportunity through counsel to interpose any defense he might have to the charge of adultery.' The co-respondent emphatically denied the charge of adultery, but on June 4 the Court passed a decree granting complainant a divorce from his wife, awarding the guardianship and custody of A. Gordon Boone, Jr., one of the minor children, to complainant, and ordering complainant to pay the costs of the proceedings. The co-respondent appeals from the decree.

The question now before us is whether the co-respondent had a right to intervene in the divorce suit so as to enable him to appeal to the Court of Appeals. He contends that he is entitled to appeal because (1) he was the only co-respondent named in the bill of complaint, (2) the court of equity passed an order permitting him to intervene as a party defendant, and (3) the main issue in the case, whether he had committed adultery, was decided against him. In 1842 the Legislature conferred jurisdiction in all applications for divorce upon the courts of equity of this State. Laws of 1841, ch. 262; Code 1939, art. 16, sec. 38. But the court in divorce proceedings sits, not in the exercise of its ordinary equity jurisdiction, but as a divorce court governed by the principles applied in the English ecclesiastical courts so far as such principles are not inconsistent with the Maryland Code. Dougherty v. Dougherty, Md., 48 A.2d 451, 456. From an early period in English history the ecclesiastical courts, which had jurisdiction over divorces, were governed by the principles of the canon and civil law, which became a part of the common law to that extent. Childs v. Childs, 49 Md. 509, 514. In 1776 the framers of the Constitution of Maryland adopted the common law as a part of the law of this State. The provision in the Declaration of Rights 'that the inhabitants of Maryland are entitled to the Common Law of England' referred to the mass of the common law as it existed in England at that time, and as it prevailed in Maryland either practically or potentially, except such portions thereof as were inconsistent with the spirit of the Constitution and the nature of our new political institutions. Md. Declaration of Rights, art. 5; State v. Buchanan, 5 Har. & J. 317, 358, 9 Am.Dec. 534.

Intervention was not allowed either at common law or in chancery. Bankers' Mortgage Co. v. Sohland, 33 W.W.Harr. 331, 33 Del. 331, 138 A. 361. While the ecclesiastical courts occasionally allowed intervention in suits for divorce, borrowing the procedure from the civil law, they did not allow intervention to co-respondents charged with adultery. Lowe v. Lowe, 68 L.J.P. 60, 80 L.T.N.S. 575, 47 W.R. 553. In 1857 Parliament passed the Matrimonial Causes Act, which transferred divorce jurisdiction from the ecclesiastical courts to the Court for Divorce and Matrimonial Causes. That Act gave every husband seeking a divorce the right to make the co-respondent a party, and empowered the court upon a wife's petition to order the co-respondent to be made a party. 20 and 21 Victoria, ch. 85, sec. 28. In 1907 Parliament enacted that any co-respondent charged with adultery in a suit for divorce has the right to intervene in the suit. In the United States some of the Legislatures have passed statutes giving co-respondents in divorce suits the right to intervene. For example, the New York Legislature in 1899 provided that any co-respondent has the right to appear and defend and to demand trial by jury, and in case the charge against him is not proved he is entitled to judgment for costs. Rixa v. Rixa, 35 Misc. 227, 71 N.Y.S. 815; Simons v. Simons, 182 Misc. 860, 49 N.Y.S.2d 929. But in Maryland there is no statute authorizing a co-respondent in a divorce suit to intervene.

It is now generally accepted that a court of equity, in order to prevent the delay of circuity of action, should allow any person to intervene in a suit for the purpose of protecting a property interest, although no such right is specifically conferred by statute. Conroy v. Southern Maryland Agricultural Ass'n, 165 Md. 494, 502, 169 A. 802; United States v. Widen, D.C., 38 F.2d 517; Williams v. Morgan, 111 U.S. 684, 4 S.Ct. 638, 28 L.Ed. 559. It is also held in a number of States that third persons claiming an interest in property involved in a divorce suit may intervene and establish their rights. Elms v. Elms, 4 Cal.2d 681, 52 P.2d 223, 102 A.L.R 811. In Texas, where a complainant applied for a divorce and also claimed part interest in certain land, and a petition of one of the joint owners of the land to intervene in the case was dismissed by the trial court, the Court of Civil Appeals said: 'There is nothing in the statute regulating proceedings for divorce that would prohibit a joint owner of lands that might be in controversy between the husband and wife to become a party to a proceeding looking towards the partition of such lands. * * * Of course, they have no interest in the proceeding merely looking to a divorce, and the decree of the trial court upon that subject will not be disturbed; but so much of the decree as sustains the demurrer and dismisses the interveners' cause of action that seeks partition will be reversed.' Weaver v. Manley, 46 Tex.Civ.App. 133, 101 S.W. 848, 849. In Maryland, however, a court of equity has no power, unless conferred by the Legislature, to transfer the property of either spouse to the other, or otherwise to dispose of it, and there is no statute authorizing the court to adjust the property rights of the...