Pressler v. Pressler

• Decision Date: 08 April 1919
• Docket Number: 3.
• Citation: 106 A. 686,134 Md. 243
• Parties: PRESSLER v. PRESSLER.
• Court: Maryland Court of Appeals

106 A. 686

134 Md. 243

PRESSLER v. PRESSLER.

No. 3.

Court of Appeals of Maryland

April 8, 1919

Appeal from Circuit Court of Baltimore City; Morris A. Soper; Judge.

Petition by Benjamin Pressler asking that the enrollment of a decree by which he was divorced be annulled and set aside, and that he be allowed to file an answer. From an order overruling a demurrer to the petition, the wife appeals. Order reversed and petition dismissed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, and CONSTABLE, JJ.

Edward M. Hammond, of Baltimore (Harry B. Wolf, of Baltimore, on the brief), for appellant.

Thomas Charles Williams and Eldridge Hood Young, both of Baltimore for appellee.

PATTISON J.

The petition in this case was filed by the appellee, Benjamin Pressler, asking that the enrollment of the decree by which he was divorced from his wife, Belle Pressler, the appellant, be annulled and set aside, and that he be allowed to file an answer and defend the suit.

The petition alleges that the appellant on the 9th day of November, 1916, filed her bill charging the appellee with adultery and asking for a decree of divorce a vinculo matrimonii.

It is further alleged in the petition that the allegations in said bill were untrue; that said plaintiff was not a faithful, loving, and chaste wife, as alleged in said petition and as testified to by her at the trial of the case, but was guilty of illicit relations with one Michael Schloss both before and after her marriage to him; that, although summoned to appear and answer to the divorce proceedings instituted against him, he, "feeling that the conduct of his wife was such that he would no longer live with her, did unthinkingly not defend said suit for divorce, and that the said plaintiff did, on the 29th day of November, 1916, obtain a decree pro confesso against him," and on the 4th day of January, 1917, a final decree was passed divorcing the plaintiff from the petitioner.

The petition then alleges:

"It was not until long after that date that the petitioner discovered the allegations in said bill of complaint nor the testimony upon which said decree was entered, and he now realizes that said decree was obtained by mistake and fraud practiced upon this court by the plaintiff, in that the said plaintiff alleged and testified that she was a faithful and chaste wife, when in fact she had since marriage been guilty of adultery with said Michael Schloss."

The appellant demurred to the whole petition, which demurrer the court overruled, with leave to the appellant to file her answer thereto within 30 days. From the order of the court overruling the demurrer, Belle Pressler, the wife, has appealed. A motion has been made to dismiss the appeal because the order appealed from-an order overruling a demurrer to the entire petition-is not an order in the nature of a final decree. That such an order is in the nature of a final decree from which a party has the right of appeal has been settled by the cases of Chappell v. Funk, 57 Md. 465; Hecht v. Colquhoun, 57 Md. 563; Hyattsville v. Smith, 105 Md. 318, 66 A. 44; Darcey v. Bayne, 105 Md. 365, 66 A. 434, 10 L. R. A. (N. S.) 863; Stinson v. Ellicott, 109 Md. 111, 71 A. 527; Reck's Ex'r v. Reck, 110 Md. 497, 73 A. 144; Peoples v. Ault, 117 Md. 631, 84 A. 60; Wilmer v. Placide, 128 Md. 168, 97 A. 363; Reynolds v. Russler, 128 Md. 606, 98 A. 75; Henderson v. Standard Oil Co., 126 Md. 577, 95 A. 153. The motion to dismiss will therefore be overruled.

The relief sought in this case is by petition, and not by a bill of review or an original bill.

"The general rule undoubtedly is that after an enrollment of a decree in chancery, in the absence of fraud, surprise or irregularity in its procurance, a substantial error in it will not be corrected or a rehearing of the case granted upon a mere petition; a bill of review or an original bill for fraud being the appropriate form of proceeding in such cases." Foxwell v. Foxwell, 122 Md. 273, 89 A. 496; Primrose v. Wright, 102 Md. 105, 62 A. 238; Pfeltz v. Pfeltz, 1 Md. Ch. 455; Burch v. Scott, 1 Gill. & J. 393; Tomlinson v. McKaig, 5 Gill. 279; Thruston v. Deviecmon, 30 Md. 217; Krone v. Linville, 31 Md. 146; Pfeaff v. Jones, 50 Md. 269; Rice v. Donald, 97 Md. 396, 55 A. 620; Whitlock Cordage Co. v. Hine, 125 Md. 96, 93 A. 431; Galloway v. Galloway, 125 Md. 511, 94 A. 97.

"But to this general rule there are certain well-defined exceptions which are equally well established, where the procedure may be by petition. These are in cases not heard on their merits and in which it is alleged that the decree was entered by mistake or surprise or under such circumstances as shall satisfy the court in the exercise of a sound discretion that the enrollment ought to be discharged and the decree set aside." Foxwell v. Foxwell, supra; Primrose v. Wright, supra; Herbert v. Rowles, 30 Md. 278; Bank v. Eccleston, 48 Md. 155; Pfeaff v. Jones, supra; Gechter v. Gechter, 51 Md. 187; Patterson v. Preston, 51 Md. 190; Downes v. Friel, 57 Md. 533; Whitlock Cordage

Co. v. Hine, supra; Page 688 Galloway v. Galloway, supra.

It is not always easy to determine, under the general rule and the exceptions thereto, when a petition to rescind an order or set aside a decree which has become enrolled should be entertained. Whitlock Cordage Co. v. Hine.

In this case the defendant, appellee in this court, was duly summoned, but failed to appear and answer the bill, and from the averment of his petition he never informed himself as to the charges contained therein. Because of his failure to appear and answer, a decree pro confesso was passed in due course, and testimony was thereafter taken, and a final decree divorcing the parties a vinculo matrimonii was granted. The only explanation made by him as to why he did not appear and answer the charges contained in said bill was that he, "feeling that the conduct of his wife was such that he would no longer live with her, did unthinkingly not defend said suit"; and the only alleged fraud that was practiced upon the court by the plaintiff in obtaining the decree here sought to be annulled was that she alleged and testified that she was a faithful and chaste wife, when, in fact, as alleged by the petition, she had been since said marriage guilty of adultery; and this is the sole ground upon which the court is asked to annul the decree.

Although the bill contained the allegation of the wife's chastity and faithfulness, which was subject to refutation by the defendant, and the fact that the defendant was guilty of adultery, he nevertheless ignored the proceedings so instituted against him, and allowed the decree complained of to be passed without any effort whatever on his part to inform himself of the allegations and charges contained in the bill, and to defend himself against the same, or to show that the allegation of chastity of the wife, or her testimony taken in support of that allegation, was untrue, but now undertakes to have the enrollment of the decree annulled and the case opened that he may be allowed to file his answer and defend the suit, which he failed to do, for the reason stated, when duly summoned to appear and defend the same.

It is not claimed that anything was done by the plaintiff to mislead the defendant or prevent him from making his defense, or that she did anything, with or without the co-operation of the defendant, to mislead the court, except to swear falsely as to her chastity, or to withhold from it any information that should have been submitted to it in reaching its conclusion; the sole fact of complaint being that she swore falsely in support of an allegation of the bill, which he had the full opportunity to refute, and which he says he unthoughtedly failed to do.

It is true he alleges in his petition that he did not know that he was charged with adultery in the bill until after the passage of the decree. He, however, was summoned to appear and defend the suit, and it was his duty to inform himself as to the allegations of the bill upon which the decree of divorce was sought.

It may further be said that, if the enrollment of the decree in this case was annulled and the defendant allowed to answer and defend the suit, the questions involved would be precisely the same, so far as the plaintiff is concerned, as those passed on at the former trial.

In discussing the question whether or not a decree or judgment should be set aside because obtained upon perjured testimony Judge Boyd said for this court in Maryland Steel Co. v. Marney, 91 Md. 375, 46 A. 1081, that-

The case "most relied on is that of the United States v. Throckmorton, 98 U.S. 61 , which is now a leading case on the subject. A demurrer to a bill to set aside decrees, alleged to have been obtained by fraud, was sustained. Justice Miller, in giving the opinion of the court, said: 'There are no maxims of the law more firmly established or of more value in the administration of justice than the two which are designed to prevent repeated litigation between the same parties in regard to the same subject of controversy, namely, "interest

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