Wagoner v. Wagoner
| Decision Date | 15 March 1893 |
| Citation | 26 A. 284,77 Md. 189 |
| Parties | WAGONER v. WAGONER. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Carroll county, in equity.
Action by Rebecca Wagoner, by her next friend, John E. Little against Elijah Wagoner, for separate maintenance, and for an injunction. From a decree for defendant, plaintiff appeals. Affirmed.
Argued before ALVEY, C.J., and ROBINSON, BRYAN, FOWLER, BRISCOE, and PAGE, JJ.
Wm. P Maulsby, for appellant.
Jas. A C. Bond, for appellee.
The appellant, Rebecca Wagoner, by her next friend, filed her bill against her husband, Elijah Wagoner, praying for a separate maintenance and support for herself and daughter out of the rents and profits of certain real estate mentioned therein, and also for an injunction to restrain him from collecting such as might be set apart for her, and also from interfering with the property until the final hearing of the case. Upon the filing of this bill the court, on the 30th of March, 1885, ordered the injunction, and the writ was accordingly issued on the following day. The defendant answered the bill on the 30th day of September following, and moved to dissolve the injunction. While this motion was pending, the complainant, having first obtained leave from the court, filed an amended and supplemental bill. This amended bill contained substantially the same averments as the original, and prayed for the same relief, except that the maintenance was asked only for herself, the daughter having married, and gone from her home, since the original bill was filed. The charges of the amended bill, briefly stated, are as follows: That she was married to the defendant in the year 1846, and lived with him until 1876; that three children were born of the marriage, who now survive, all of whom reside apart from her; that she inherited from her father, who died in the year 1852, certain real estate, described in the bill and was entitled from his estate to certain funds, which passed into the hands of her husband, of which only a small part now remains; that up to the year 1878 he received all the rents and profits of the said real estate, and provided for the support and maintenance of his family; that in May, 1879, he became an insolvent, and since then has been possessed of no property, except some personal property of small value; that he ceased to provide for his family during the year 1878, and from May, 1879, has contributed nothing for their maintenance, and from that period has abandoned all care and management of said real estate, so that she was compelled to assume the management of it, rent it in her own name, and herself receive the rents and profits thereof; that, in addition to that which she inherited from her father, she acquired, by purchase, in 1878, from Mr. McKellip, and now owns, two small lots in Westminster, the net income from which is about $65; that she has no other means of support than the income from these several parcels of real estate inherited from her father and purchased from Mr. McKellip; that the defendant is addicted to the excessive use of ardent spirits, which renders him incompetent to transact business, and causes him to be personally offensive; that, but for the habit of excessive drinking, he would be capable of earning a decent livelihood for himself and family; that the amount of state, county, and city taxes is annually about $134; that "on a few occasions, and after the year 1882, the defendant has sought to interfere with the payment of rents to your oratrix," and has recently demanded of some of the persons to whom she had rented parts of the property aforesaid payments to him of said rents, and she charges that he will, unless restrained, seek to recover and receive all the said rents and profits, and appropriate the same to his own use; and that she has reason to believe, and does believe, that if he succeeds in securing possession of the said rents, he will not pay the taxes annually accruing, nor apply them to the needs of herself, so that she will be entirely deprived of all her means of livelihood. The prayer of the bill is "that out of the rents, etc., arising from the said property and bank stock before mentioned, and intrusted and acquired by her as aforesaid, a suitable and sufficient provision for the support and maintenance of your oratrix may, by the decree of your honors, be made and secured to her, and that the defendant may be enjoined and restrained from in any wise interfering with the same, and from collecting and interfering with the said rents, issues, and profits arising from said property and bank stock as aforesaid, until the final hearing, or until the further order or decree * * * in the premises." On the 19th day of August, 1887, the court passed an order refusing the injunction prayed for by the amended bill. Subsequent to the passage of this order, the defendant filed his answer, in which, after denying many of the averments of the bill, he admits he has demanded, as of right, the rents and profits of the property inherited by his wife from her father in 1852, but alleges he has no wish or purpose to divert them from the support of the complainant. He also denies the jurisdiction of the court to interfere with him in the management and control of that property, and by the concluding paragraph pleads in bar of this proceeding a former cause between himself and the complainant, being No. 2,171 of the equity docket of the circuit court for Carroll county. After many delays, and the taking of much testimony, the court, on the 25th day of July, 1892, finally decreed that the order of the court "refusing the injunction prayed for by the amended bill * * * be, and the same is hereby, made perpetual," and that the "bill of the complainant is hereby dismissed."
It was contended at the argument that, notwithstanding the order of the court refusing the injunction asked for in the amended bill, and the final decree making that refusal permanent and dismissing the bill, the injunction granted upon the original bill is still continuing; but we cannot assent to this. The amendment to the bill in this case was made, not by filing a paper containing only such averments as were amendatory, but by an entirely new bill, complete in all its parts containing substantially the same averments and praying for the same relief as the original bill. It was clearly intended by the complainant and understood by the court as a substitute for the original complaint. In her petition praying leave to amend, the complainant states "that she has embodied said amendmen...
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