Owen v. Owen

• Decision Date: 14 January 1932
• Citation: 162 S.E. 46
• Parties: OWEN. v. OWEN.
• Court: Virginia Supreme Court

162 S.E. 46

OWEN.

v.OWEN.

Supreme Court of Appeals of Virginia.

Jan. 14, 1932.

Appeal from Law and Equity Court of City of Richmond.

Suit by Irvin Stanley Owen against Nettie Small Owen, who filed cross-bill against plaintiff. Prom decree for cross-complainant, plaintiff appeals.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, and BROWNING, JJ.

Thomas I. Talley, of Richmond, for appellant.

M. Haley Shelton, of Richmond, for appellee.

HUDGINS, J.

Irvin Stanley Owen sued his wife for a divorce, charging adultery; the wife tiled an answer and cross-bill making the same charge against her husband; the testimony was taken ore tenus. The court held that neither party had proven the allegations in the pleadings, permitted the respondent to amend her cross-bill charging desertion by the husband, and on March 28, 1930, entered a decree granting her a divorce a mensa et thoro on this ground. The decree contains but one exception, i. e., the objection of the husband to the action of the court denying him a divorce on the ground of adultery, and he, on that ground, signified his intention to appeal. The evidence was not made a part of the record, and no question is raised in this court as to the correctness of this ruling.

On September 24, 1930, more than fifteen days after the entering of the above decree and after the full May term of the law and equity court had intervened and the September term begun, the following order was entered:

"The parties by their respective counsel having requested the court to make a part of the record in this cause certain facts occurring during the hearing, but not appearing of record and said parties having entered into a written stipulation reciting such facts, the court with the consent of said parties doth order that a certain paper designated 'Agreed Statement of Facts' be and the same is filed and made a part of the record."

The paper referred to in the above order recites that at the conclusion of the introduction of testimony the court ruled that the evidence was not sufficient to support the charges made by either party in the original pleadings; that the court was of the opinion that the wife had proven desertion by the husband; that the wife was permitted to amend her cross-bill, adding desertion as an additional ground for divorce; that the husband objected to the amendment, stating that it charged a new ground for divorce, which should not be permitted at that stage of the trial when both sides had completed the taking of testimony; that the husband moved to be allowed to introduce evidence to disprove the new allegation, which motion was denied, and he excepted.

The arguments in the briefs are confined to the questions raised in the statement of facts. During the oral argument, this court asked how the statement of facts became a part of the record. The attorney for the appellant replied that the order of the trial court making it a part of the record was entered within six months from the date of the original decree and that the statute limiting the time in which bills of exception should be filed did not apply to chancery causes. Thereupon the attorney for the appellee stated, in substance, that if the court were of opinion that the sixty-day limitation did apply he wished to take advantage of it, and then proceeded with the argument contained in his brief.

The question which gives us trouble is whether a court has power in equity to change or add to the record after adjournment of the term in which the final decree is entered.

The decree in question disposed of the whole subject-matter then before the court. It granted the wife a divorce from bed and board. It eliminated the marital rights of each consort in the property of the other, whether then owned or afterwards acquired. It ordered the payment of permanent alimony to the wife, fixed the amount of her attorney fees, and ordered this sum paid. The court, after the adjournment of the term, had no further supervisory powers over the case except to change or modify the payment of permanent alimony to meet the changed conditions of the parties subsequently arising (Gloth v. Gloth, 154 Va. 511, 153 S. E. 879, 71 A. L. R. 700), or to merge the decree into a divorce a vinculo when the proper notice and proof were introduced. Any further action of the court depends upon the happenings in the future for which it may or may not be called on to act, but as for prior proceedings, orders, and decrees, the case was closed.

In Sibbald v. U. S., 12 Pet. 488, 492, 9 L. Ed. 1167, it is stated:

"A final decree in chancery is as conclusive as a judgment at law. [Martin v. Hunter] 1 Wheat. 355 ; [Hopkins v. Lee], 6 Wheat. 113, 116 . Both are conclusive on the rights of the parties thereby adjudicated. No principle is better settled, or of more universal application, than that no court can reverse or annul its own final decrees or judgments, for errors of fact or law, after the term in which they have been rendered, unless for clerical mistakes ([Cameron v. M'Roberts], 3 Wheat. 591 ; [Bank of Commonwealth of Kentucky v. Wistar], 3 Pet. 431 ); or to reinstate a cause dismissed by mistake ([The Palmyra], 12 Wheat. 10 ); from which it follows, that no change or modification can be made, which may substantially vary or affect it in any material thing. Bills of review, in cases in equity, and writs of error coram nobis, at law, are exceptions which cannot affect the present motion."

See, also, Cameron v. M'Roberts, 16 U. S. (3 Wheat.) 591, 4 L. Ed. 467; Whiting v. V. S. Bank, 13 Pet. 6, 10 L. Ed. 33.

It is said in Battaile v. Maryland Hospital for the Insane, 76 Va. 63, 67: "If the decree was final it must stand, however erroneous it may be. And so of all the decrees, orders, and proceedings ahead of it. Neither appellants nor appellees can, on the present appeal, assail them here."

In Smith v. Powell, 98 Va. 431, 435, 36 S. E. 522, 524, Judge Keith held: "The decree of April, 1893, having been a final decree, no other decree could regularly have been entered in the cause."

Judge Buchanan stated in Barnes v. Commonwealth, 92 Va. 794, 796, 23 S. E. 784: "The rule at common law is that, during the term wherein any judicial act is clone, the record remains in the breast of the judges of the court, and in their remembrance, and therefore the roll is alterable during the term as the judges shall direct; but, when the term is past, then the record is in the roll, and admits of no alteration, averment, or proof to the contrary. 3 Thom. Co. Litt. 323, as quoted in 1 Rob. Prac. (Old Ed.) 638; Bunting v. Willis, 27 Grat. [68 Va.] at pages 158, 159 ; Winston v. Giles, 27 Grat. [68 Va.] at page 534; Cawood's Case, 2 Va. Cas. 527, 545. * * *

"It [correction of a final order] is, indeed, a very delicate power, and might be subject to much abuse, especially In criminal cases, if the extent to which it might be carried was not well defined and properly checked by law. Note to 1 Archb. Cr. Prac. & P1. (Pom. 8th Ed.) p. 593.

"At an early day in this state, statutes were enacted for the purpose of compelling the courts to keep their records accurately, and to provide how records, in certain cases, might be amended."

The statute to which the above opinion alludes is now Code, section 6333, which au-thorizes amendments in a certain class of cases and for certain described errors in judgments or decrees to be made after the adjournment of the term. No motion to amend was made under this section, and if It had been it would not have availed the appellant, because there was nothing in the record to show that the trial court committed an error. The extent and limitations of this statute were fully analyzed in a very able opinion written by Judge Riely in the case of Shipman v. Fletcher, 91 Va. 473, 22 S. E. 458. A final decree was entered in that case confirming the report of a commissioner. Exceptions were filed to the commissioner's report, but not as to a certain item of some $3,000. After the adjournment of the term at which the final decree was entered, the commissioner wrote the judge, at the instigation of one of the parties, that through an oversight he had failed to allow this item. The trial judge refused to amend the former decree and this court sustained his action, holding that the above section did not apply.

In Burch v. White, 3 Rand. (24 Va.) 104, it is held that where the record omits to state that an appeal was allowed from a judgment, the omission cannot be cured at a subsequent term. See Commonwealth v. Winston, 5 Rand. (26 Va.) 546; Moses v. Cromwell, 78 Va. 671; Powell v. Commonwealth, 11 Grat. (52 Va.) 822; Chase v. Miller, 88 Va. 791, 14 S. E. 545; Price v. Commonwealth, 33 Grat. (74 Va.).819, 36 Am. Rep. 797; W. & N. O. Tel. Co. v. Hobson, 15 Grat. (56 Va.) 122; Martz's Ex'r v. Martz's Heirs, 25 Grat. (66 Va.) 361.

Code, § 6337, prohibits litigants from presenting to this court an appeal from a final decree after the lapse of six months from the time it is rendered, but this section has no bearing whatever on what constitutes the record, or the time in which the record must be completed in the trial court. Usually all the proceedings in a chancery cause are in writing and the record is complete on the rendition of the final decree. The orders and decrees usually set forth the different rulings of the court. There is nothing in the "Agreed Statement of Facts" which could not have been incorporated in the decree of March 28th, and doubtless this would have been done had the attorney for the appellant made the request of the trial judge at the proper time. The practice generally adhered to in this state is for the attorney for the...