Price v. Price

• Citation: 114 Fla. 233,153 So. 904
• Parties: PRICE v. PRICE.
• Decision Date: 09 March 1934
• Court: United States State Supreme Court of Florida

153 So. 904

114 Fla. 233

PRICE v. PRICE.

Florida Supreme Court

March 9, 1934

En Banc.

Suit by Edwin C. Price against Laura B. Price. From an adverse decree, the defendant appeals. During the pendency of the appeal, Edwin C. Price died, and, on application of appellant, Catherine A. Girault, as sole executrix of the last will and testament of Edwin C. Price, deceased, was substituted as party appellee in lieu of the deceased. On rule to show cause why appeal should not be dismissed as moot.

Rule discharged. Appeal from Circuit Court, Pinellas County.

COUNSEL

John M Allison and Sam Bucklew, both of Tampa, for appellant.

Phillips & Thompson, of Clearwater, for appellee.

OPINION

DAVIS Chief Justice.

On October 26, 1932, one Edwin C. Price filed suit against his wife, Laura B. Price, the object being divorce. No property rights were mentioned or involved directly in the bill of complaint. On November 7, 1932, answer to the bill was filed. The answer of the defendant wife, after denying seriatim the allegations of the bill of complaint, set up the fact complainant was a man of great wealth and that he was indebted to her in the sum of $10,000, which she alleged had been loaned by her to her husband. Upon a trial of the issues the chancellor found in the husband's favor, and on December 19, 1932, entered a decree of divorce. One paragraph of the decree contained a provision to the effect that 'the court reserves jurisdiction of this cause for the purpose of settling the property rights of the parties hereto.' On May 6, 1933, appellant filed and had duly recorded her entry of appeal from the final decree. On May 8, 1933, appellee husband, Edwin C. Price, died. After appellee's death, suggestion thereof was made and filed in this court. Upon application of appellant, an order was entered naming Catherine A. Girault as sole executrix of the last will of Edwin C. Price deceased, a party appellee in this cause, in lieu of and as representative of the deceased appellee, Edwin C. Price.

The case is now before us on a rule issued by this court sua sponte, requiring appellant, Laura B. Price, to show cause why the appeal, being from a decree of divorce as to which the appellee is deceased, should not be dismissed as moot because of the death of the divorced husband.

It is undoubtedly the law that the marital relation, being a purely personal one, is terminated by the death of either of the parties and that a suit for divorce is purely a personal action which cannot survive the death of either party. 30 A. L. R. p. 1467, and authorities there cited; Kimball v. Kimball, 44 N.H. 122, 82 Am. Dec. 194; Barney v. Barney, 14 Iowa, 189; Kirschner v. Dietrich, 110 Cal. 502, 42 P. 1064; 9 R. C. L. 469; 1 C.J. 208.

But the justice of the principle is manifest that, while death ordinarily terminates a divorce suit, as well after a decree during the time the case is on appeal, as before any decree at all is entered, yet, after an appeal has been duly taken, and is pending from a decree of divorce granted during the lifetime of both parties, it is the duty of the appellate court to review the decree and correct any error therein, in those cases where it is made to appear that an error committed in the entry of the decree severing the marriage between the parties prior to the death of one of them may result in consequences which will affect the property rights of parties to the suit, their heirs and personal representatives, if the appeal be dismissed.

While both parties to a divorce decree live, an appeal from it lies in this court to reverse an erroneous decree of divorce; the effect of such reversal being to restore both parties to their former status as husband and wife, in law. And after the death of one of such parties it is said by the weight of authority that it ought to lie in favor of the other party not for the same purpose, but to restore the survivor to his or her rights of property divested erroneously by the decree appealed from. On such reversal, the parties will be placed in the position they occupied before the decree was entered, and if one of them has died between the date of the decree of divorce and its reversal, the survivor procuring the reversal will be entitled to all rights of succession or the like, in the estate of the other, the same as if no divorce has ever been had. Danforth v. Danforth, 111 Ill. 236; Wren v. Moss, 1 Gilman (6 Ill.) 560; Id., 2 Gilman (7 Ill.) 72; Chatterton v. Chatterton, 231 Ill. 449, 83 N.E. 161, 121 Am. St. Rep. 339; Strickland v. Strickland, 80 Ark. 451, 97 S.W. 659; Bradshaw v. Sullivan, 160 Ark. 547, 254 S.W. 1064; Nickerson v. Nickerson, 34 Or. 1, 48 P. 423, 54 P. 277; Higgins v. Higgins, 204 Iowa, 1312, 216 N.W. 693; Oliver v. Oliver (Iowa) 248 N.W. 233; Craddock's Adm'r v. Craddock's Adm'r, 158 Va. 58, 163 S.E. 387; Caddell v....