Schwab v. Schwab

• Decision Date: 12 June 1901
• Citation: 93 Md. 382,49 A. 331
• Parties: SCHWAB v. SCHWAB.
• Court: Maryland Court of Appeals

49 A. 331

93 Md. 382

SCHWAB

v. SCHWAB.

Court of Appeals of Maryland.

June 12, 1901.

Appeal from circuit courtNo. 2 of Baltimore city; George M. Sharp, Judge.

Suit for divorce by Flora O. Schwab against Leon H. Schwab.From an order refusing to allow the filing of a supplemental bill, plaintiff appeals.Affirmed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PEARCE, and SCHMUCKER, JJ.

Isidor Rayner and Steiner & Putzel, for appellant.

M. R. Walter and Lewis J. Cohen, for appellee.

SCHMUCKER, J.This case presents for our consideration an Important question of equity practice in proceedings for divorce.The appellant, on September 15, 1889, filed a bill against the appellee for divorce a mensa et thoro upon the grounds of cruelty, vicious conduct, and abandonment The appellee answered the bill, denying its material allegations, and on October 10, 1899, the general replication was filed to his answer.Upon the issue thus made up the plaintiff took all of her testimony in chief, the defendant concluded his testimony, and the plaintiff examined four witnesses in rebuttal.The testimony thus taken covered 783 typewritten pages.At this stage of the proceedings, on January 14, 1901,—nearly 16 months after the filing of the original bill,—the appellant filed a petition in the case alleging "she had Just learned that the defendant has been guilty of adultery since the filing of the bill of complaint and that she should be granted a divorce a vinculo matrimonii from the defendant," and praying for leave "to file a supplemental bill of complaint, so that she may obtain the relief to which she is entitled."To this petition the appellee filed a written objection to the court's granting the leave prayed for by the appellant upon three grounds, which were: (1) Because the bill was filed for a decree a mensa et thoro, and alleges no facts entitling her to a decree a vinculo matrimonii; (2) that as the appellant's petition alleged that the adultery therein charged was committed after the filing of the bill, the relief which she sought could be obtained only by the institution of a new suit; and (3) that the testimony under the original bill had been concluded on both sides.The circuit court denied the application for leave to file the supplemental bill, and dismissed the appellant's petition without prejudice to her right to file an original bill.From that order the present appeal was taken.

The material question presented by the appeal is whether, when a bill has been filed for a divorce a mensa et thoro upon grounds not constituting cause for a divorce a vinculo, and the issue has been made up, and the testimony substantially all taken, the plaintiff should be permitted to file in that case a supplemental bill asking for a divorce a vinculo for causes which occurred after the filing of the original bill.A supplemental bill, as its name indicates, is an addition to an original bill, and it is ordinarily filed to correct some imperfection or mistake in the original bill, or to bring some new party into the case.It may also be filed in some cases to bring before the court new matters which have occurred since the filing of the original bill, and in that event the relief originally prayed for may be modified or enlarged to meet the case as presented after the addition of the new matter.Story, Eq. PI. § 333 et seq.;Daniell, Ch. Prac. 1513-1539;Miller, Eq. Proc. 246, 247;Winn v. Albert, 2 Md. Ch. 47, 48.It is well settled, however, that, the supplemental bill being merely an addition to the original bill, and the two constituting but one record, the latter must be consistent with the former, and its allegations must be germane thereto, and must be supplemental in their nature, and not Independent or subsequent, and the new matters must not change the rights or interest of the parties.An entirely new case cannot be introduced by a supplemental bill, although enlarged or even different relief may be obtained thereby 2 Daniell, Ch. Prac. p. *1517, and note, 1536;Story, Eq. PI. § 337;Milner v. Milner, 2 Edw. Ch. 114;Jacob v. Lorenz, 98 Cal. 332, 33 Pac. 119;Bank v. Fowler, 42 Md. 393;Bannon v. Comegys, 69 Md. 411, 16 Atl. 129;Birmingham v. Lesan, 77 Me. 494, 1 Atl. 151;Minnesota Co. v. St. Paul Co., 6 Wall. 742, 18 L. Ed. 850.Where the facts occurring subsequent to the filing of the original bill are, when considered separately from those set up in the bill, sufficient in themselves to constitute a cause of action, they must be made the subject of a separate original bill, and cannot properly be embraced in a supplemental one.Milner v. Milner, supra;Bannon v. Comegys, supra; Robertson v. Robertson, 9 Daly, 44;Prouty v. Railroad, 85 N. Y. 275;Keyser v. Renner, 87 Va. 249, 12 S. E. 406;Hill v. Hill, 10 Ala. 527.In Straughan v. Hallwood, 30 W. Va. 274, 4 S. E. 394, 8 Am. St. Rep. 29, the court say that "to permit a new cause of action, arising after the institution of the original suit, to be prosecuted by a supplemental bill, would be to violate the obvious principle that in every case the cause of action must exist at the time the suit is brought."In the present casethe appellant filed her original bill for a divorce a mensa et thoro upon the grounds of cruelty and abandonment, and then, when issue had been joined on those allegations, and the testimony had been substantially completed, and the case was almost ready for a hearing, she asked leave to file a supplemental bill charging the appellee with the commission of adultery at a date subsequent to the institution of the suit, and praying for a divorce a vinculo.The allegations of this proposed supplemental bill would not have been germane to, or in aid of, the original cause of action, nor would they have tended to support the rights and Interests already in the bill.The proposition was to introduce a separate and independent cause of action which occurred subsequent to the Institution of the suit and by that means obtain an altogether different...