Wood v. Wood

• Decision Date: 21 July 1894
• Citation: 27 S.W. 641
• Parties: WOOD v. WOOD.
• Court: Arkansas Supreme Court

Page 641

27 S.W. 641

WOOD v. WOOD.

Supreme Court of Arkansas.

July 21, 1894.

Appeal from Pulaski chancery court; David W. Carroll, Chancellor.

Action by Mary J. Wood against Henry Wood for divorce. A decree for absolute divorce with alimony was rendered for plaintiff, and she seeks to set same aside by bill of review. The bill of review was stricken from the files, and plaintiff appeals. Affirmed.

Martin & Murphy, for appellant. Rose, Hemingway & Rose and J. M. Moore, for appellee.

BATTLE, J.

The chancery court erred in striking from its files appellant's bill of review, for the reason it was filed without leave first had and obtained. It was brought to procure an examination and reversal of a decree made on a bill for divorce on account of alleged errors of law apparent on the face of the record. It is not necessary to obtain leave of the court before a bill of this kind can be filed. Perry v. Phelips, 17 Ves. 178; Story, Eq. Pl. §§ 404, 405; Mitf. Eq. Pl. 84. In Jacks v. Adair, 33 Ark. 173, and Webster v. Diamond, 36 Ark. 538, this court held that a bill of review founded on newly-discovered evidence cannot be lawfully filed without leave of the court first obtained, but this rule does not apply to bills of review for errors of law apparent on the face of the decree.

The order to strike the bill from the files of the court should not be reversed, notwithstanding it was erroneous, unless it was prejudicial to the appellant; and it was not if the bill fails to show that she was entitled to the relief asked for therein, and should be affirmed. Woodall v. Moore, 55 Ark. 22, 17 S. W. 268; Denson v. Denson, 33 Miss. 560; Bleight v. McIlvoy, 4 T. B. Mon. 142. Was it prejudicial?

Appellant assigns in her complaint three errors of law in the decree of divorce: First, the appellant had not resided in this state for the period of one year before she commenced the action in which the decree of divorce was rendered; second, the allowance of alimony was too small and inadequate; and, third, the alimony should not have been given her in bar of dower in the estate of appellee. The prayer of the bill was that the decree be so modified as to allow her reasonable alimony, and a divorce from bed and board instead of from the bonds of matrimony.

In an examination of the errors assigned we are confined to the pleadings, proceedings, and decree, as set out in the complaint. In an attack upon a decree by a bill of review for errors of law a court cannot look into the evidence, to see whether the decree is based upon a correct finding of the facts. That is the proper office of a court of competent jurisdiction upon an appeal. But, assuming that the facts upon which the decree rests have been properly found, it is the sole duty of a court to inquire whether the record, exclusive of the evidence, contains any substantial error of law pointed out by the bill of review. Story, Eq. Pl. § 407; Buffington v. Harvey, 95 U. S. 99.

Before any person can be entitled to a divorce under our statute he or she must allege and prove, in addition to a legal cause of divorce, a residence in this state for one year next before the commencement of the action. The appellant failed to comply with this statutory prerequisite in the beginning of her action as first instituted. She first became a resident of this state on the 17th of April, 1888, and brought suit for a divorce on the 26th of June next following; and was not, therefore, entitled to a decree for divorce in the action as originally brought. But she amended her complaint by adding an entirely new and distinct cause of divorce, of which the cause on which her action was originally founded formed no part, and by stating that she had been a resident of this state for more than two years next before the filing of the amendment, and by asking for a divorce from the bonds of matrimony, and for alimony. This amendment was filed in June, 1891. Appellee answered it, and denied the allegations as to the grounds of divorce. Depositions were taken to show the residence of the appellant in this state for the one year before the filing of the amendment, and the new cause of divorce. Upon this evidence she obtained the decree which she now seeks to set aside by bill of review.

The filing of the amendment setting up an entirely separate and distinct cause of divorce, and the answer to it of appellee, were equivalent to, and not distinguishable from, the beginning of a new suit. In answering, the appellee entered his appearance, and waived summons. The same result was reached as would have been accomplished had a new and original complaint been filed. In that case the appellee could have entered his appearance, as he did, and waived summons, and the same end would have been obtained as was reached by the filing of the amendment. The legal effect of the two proceedings is the same. When a new cause of action is introduced by amendment, a lis pendens is not created as to the subject-matter of the amendment, and the statute of limitation does not cease to run until the filing of the amendment. Curtis v. Hitchcock, 10 Paige, 400; Holmes v. Trout, 7 Pet. 214; Sicard v. Davis, 6 Pet. 124; Wilkes v. Elliot, 5 Cranch, C. C. 611, Fed. Cas. No. 17,660. Such has been held to be the effect of an amendment setting up a new cause of divorce in Kentucky. In Logan v. Logan, 2 B. Mon. 148, it was held that, "though an original bill for alimony and divorce may be prematurely filed, yet, if grounds for alimony occur before the hearing, and the facts are set out in an amended bill, and not answered, the court may give the appropriate decree for the complainant." And so, in McCrocklin v. McCrocklin, Id. 370, the same court held that, "though the time of abandonment may not have authorized any decree when the original bill was filed, yet if, before the filing of an amended bill, the abandonment has been sufficiently long to authorize a decree of divorce and for alimony, it may be decreed."

2. As to the sufficiency of the alimony decreed to the appellant, no error of law appears upon the record. That is a fact which appears only in the evidence. Upon this point the decree says: "In the matter of alimony, the same having been heard by the court on proof and arguments of solicitors, and the parties consenting that alimony may be awarded in a gross sum, and the court being well and sufficiently advised in the premises, it is ordered and adjudged that out of the estate of the said defendant, Henry Wood, the plaintiff, Mary J. Wood, be, and she is hereby, allowed the sum of $33,000 by way of alimony to be paid to her by the said Henry Wood (or to her solicitors of record, Caruth & Erb), together with the costs accrued in this cause." This is conclusive in this proceeding as to the sufficiency of the alimony, it being a matter which was determined by the court by hearing the evidence. If it was inadequate, the remedy of the appellant was by appeal from the decree by which it was allowed. Bauman v. Bauman, 18 Ark. 330.

In allowing alimony in a gross sum the court departed from the course usually pursued in such matters, but this was done by consent. She was represented by solicitors, who were acting within the apparent scope of their authority. She has no right to repudiate her acts of record, done by them, but she must abide by them, and hold her solicitors responsible if they were derelict in their duties or unfaithful, to her injury. In rendering a decree in accordance with consent of parties, given by their respective solicitors, no error of law was committed by the court. Coster v. Clarke, 3 Edw. Ch. 405; Price v. Notrebe, 17 Ark. 56; Beck v. Bellamy, 93 N. C. 129; Shattuck v. Bill, 142 Mass. 56, 7 N. E. 39; Brockley v. Brockley, 122 Pa. St. 1, 6, 15 Atl. 646.

3. In allowing alimony the court decreed that it should be a "bar of all the plaintiff's right of dower in the estate of the said Henry Wood," her former husband. She insists that, the divorce not having been granted on account of her misconduct, the court erred in barring her dotal rights. But this is not true, unless she could have retained her right to dower after her divorce from the bonds of matrimony. She could not at common law. To entitle a party to dower, she must be the wife at the death of the husband. A divorce from the bonds of matrimony barred the claim of dower. Frampton v. Stephens, 21 Ch. Div. 164; McCraney v. McCraney, 5 Iowa, 241; Gleason v. Emerson, 51 N. H. 405; Barrett v. Failing, 111 U. S. 525, 4 Sup. Ct. 598; Day v. West, 2 Edw. Ch. 596; Reynolds v. Reynolds, 24 Wend. 196; Wait v. Wait, 4 N. Y. 95; Co. Litt. L. 1 c. 5, §§ 36, 32a; 3 Bl. Comm. 130; 4 Kent, Comm. 54; 2 Bish. Mar., Div. & Sep. § 1631.

But section 2578 of Mansfield's Digest provides: "In case of divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed." This is a peculiar statute. Without undertaking to declare the rights of a divorced wife, the legislature declared by this section in what event she shall not be endowed. It is a copy of a New York statute without the enactment of the statutes of the state from which it was borrowed, which explained, and gave it vitality and effect in that state.

In Reynolds v. Reynolds, 24 Wend. 193, the origin and effect of this statute in New York is explained as...