Tabeling v. Tabeling

• Decision Date: 24 May 1929
• Docket Number: 22.
• Citation: 146 A. 389,157 Md. 429
• Parties: TABELING v. TABELING.
• Court: Maryland Court of Appeals

146 A. 389

157 Md. 429

TABELING v. TABELING.

No. 22.

Court of Appeals of Maryland

May 24, 1929

Appeal from Circuit Court No. 2 of Baltimore City; Joseph N. Ulman Judge.

Suit by William V. Tabeling against Sarah L. Tabeling, in which there was a decree for plaintiff. On defendant's petition, the decree was vacated, and a decree was entered for defendant and plaintiff appeals. Reversed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.

Wm. Purnell Hall, of Baltimore, for appellant.

Wm. Pinkney Whyte, Jr., of Baltimore (Isaac Lobe Straus and Avrum K. Rifman, both of Baltimore, on the briefs), for appellee.

SLOAN J.

On June 25, 1927, the appellant, William V. Tabeling, filed a bill in the circuit court of Baltimore city praying a divorce a vinculo matrimonii from the appellee, Sarah L. Tabeling, on the ground of adultery. To this the appellee answered and filed a cross-bill against the appellant for a divorce a mensa et thoro on the ground of abandonment. After having heard the testimony the court passed a decree on the 24th day of January, 1928, granting the appellant an absolute divorce from the appellee from which, on the same day, she appealed to the April term, 1928, of this court. The case was continued to the October term, 1928, and on the 25th day of September, 1928, the appellee (the appellant in No. 12, April term, 1928) dismissed her appeal. On May 28, 1928, the appellee filed a petition in the circuit court of Baltimore city, praying that court to strike out the decree of January 24, 1928, and to "re-open and further consider the said cause for such further proceeding and action" as that court should "determine to be proper in the premises," the reasons assigned therefor being:

(1) That the decree "was procured and obtained by conspiracy and fraud upon the part of and between the plaintiff, William V. Tabeling, and his detectives and witnesses, John R. Brown, John Small, alias John Smallwood, Ralph Stokes, alias 'Sam' Stokes, and Mamie Tomlin, alias Lou Wright, to charge the defendant with and convict her of the crime of adultery with the said * * * witnesses and detective 'Sam' Stokes for the purpose of procuring and obtaining for the said William V. Tabeling an absolute divorce from the said Sarah L. Tabeling upon and by virtue of said charge of adultery"; that the decree was obtained by the perjury of the said witnesses "pursuant to the conspiracy aforesaid" and that the testimony of the said witnesses "was designed and intended to mislead and induce" the court to grant said decree.

(2) That since the granting and entering of the decree, the whereabouts of Mamie Tomlin, alias Lou Wright, who was not available at the trial and hearing, had been discovered, and that she had made a statement in the office of the state's attorney "showing the conspiracy and collusion aforesaid, and also the material and willful falsehood of the testimony of the said Brown, Stokes and Small at the said trial * * * and showing also that the said William Tabeling was guilty of connivance at and in the attempt of said detectives, Brown, Stokes, Small and Tomlin, to lead the defendant into a compromising position and to appear to have committed the crime of adultery with said detective and witness Stokes," and that the statement of Mamie Tomlin would be available at the hearing of the petition.

(3) That the witness and detective Small, or Smallwood, had also made a statement in the state's attorney's office showing the said "conspiracy, fraud and perjury" on the part of the witnesses Brown, Stokes, and himself and the connivance of William V. Tabeling.

On the petition of May 28, 1928, an order was passed by the circuit court of Baltimore for the plaintiff (appellant) to show cause why the decree of divorce of January 24, 1928, should not be stricken out and the case reopened for such further proceedings as the court should determine to be proper in the premises. An answer to the petition was filed by the appellant, denying each and all of the charges of the appellee, and after a hearing before the circuit court a decree was passed vacating and annulling the decree of January 24, 1928, by which the appellant had been granted an absolute divorce from the appellee, and a divorce a mensa et thoro was granted the appellee from the appellant. The decree also required the appellant to pay the appellee $5 alimony pendente lite per week and $500 counsel fees.

The view we take of the petition and proceedings thereon makes it unnecessary to discuss the question of the action of the circuit court pending an appeal to this court.

At the hearing there was no testimony offered by the appellee except the hearsay evidence of John A. Sherman, Jr., assistant state's attorney of Baltimore city, who submitted the statements made to him by Mamie Tomlin and John Small, upon which a decree was passed as above stated; and it is from this decree the appeal is taken.

In the former appeal, which was dismissed by the appellee (then the appellant), it was contended by her (1) that the charge of adultery had not been sustained; (2) that she was entitled to a decree a mensa et thoro; (3) that the evidence was obtained by connivance on the part of the husband (now the appellant), and these were the contentions made by her, both at the oral argument and in the brief in the instant case.

The appellant contends that the questions involved in this appeal are: (1) That the decree of January 24, 1928, had become enrolled before the petition of May 28, 1928, to annul the decree had been filed; (2) the admissibility of the evidence on which the decree of separation was based; (3) allowance and amount of counsel fees.

It was contended by the appellant that the proceeding adopted by the appellee to set aside the decree of divorce was erroneous, in that a decree, after enrollment, can only be revised or annulled by a bill of review, or original bill for fraud, and not by petition. Miller's Equity, 357, 358. In Whitlock Cordage Co. v. Hine, 125 Md. 96, 102, 93 A. 431, 433, this court, in an opinion by Chief Judge Boyd, said: "It must be confessed that it is not always easy to determine under the authorities when a petition to rescind an order or set aside a decree, which has become enrolled, should be entertained. The general rule undoubtedly is that a decree or a decretal order, after enrollment, can be revised or annulled only by a bill of review or original bill and not by a petition, but there are exceptions to the rule, equally well established as the rule itself, which are generally classified as follows: (1) In cases not heard upon the merits. (2) Where the circumstances are such as to satisfy the court that the decree should be set aside, and (3) where the decree was entered by mistake or surprise." As this case was considered on the merits before the decree of January 24, 1928, was entered, and as the appellee (defendant) appeared, filed her answer, and vigorously contested the case, there was neither mistake nor surprise in the proceeding. It leaves the case for consideration by this court only under the second of the excepted heads, and of this, Mr. Miller, in his Equity Procedure, 361, says: "No certain rule can be laid down in such cases, each case depending upon its own peculiar circumstances." Pressler v. Pressler, 134 Md. 243, 106 A. 686.

If the facts set up in the petition were before the court in the first instance, and the court was not deceived or misled into the entry of the decree, it will not be disturbed. Maryland Steel Co. v. Marney, 91 Md. 375, 46 A. 1077; Pressler v. Pressler, supra; Payne v. Payne, 97 Md. 678, 55 A. 368.

In the proceedings to set aside the decree there was no matter presented which did not appear, or which might not have been inferred from the evidence on which the court granted the original decree. All that is alleged in the petition to rescind is a conspiracy of the appellant's witnesses to place the appellee in a compromising position and...