Daly v. Hosmer

Hooker, J. The relator filed a bill for divorce on September 9, 1893. The defendant filed an answer in the nature of a cross-bill on December 26, 1893, said answer being verified; but said verification did not contain the averment negativing collusion, as required by 3 How. Stat. § 6232. On January 17, 1894, complainant filed an answer [394] to the answer in the nature of a cross-bill. Proofs were’ taken in open court, beginning on March 14, 1894, and ending March 21, 1894. Both parties appeared by counsel, and both introduced testimony. TJpon the 21st day of March a decree was made, granting a divorce to the defendant, and denying it to the complainant. On June 29, 1894, relator caused a petition to be filed in said cause, asking that the decree be set aside for the following reasons, viz.: 1. That the cause was not- at issue when heard, because no replication to complainant's answer to defendant's cross-bill had been filed. , 2. That defendant's answer in the nature of a cross-bill was not properly verified. 3. That the testimony was prematurely and unlawfully taken, because it was taken within the period of four months after the defendant's answer in the nature of a cross-bill was filed. 4. That a decree was rendered in favor of the defendant within four months after his cross-bill was filed. The court denied the prayer of this petition, and made an order that defendant be permitted to verify his answer, and to file a replication nunc pro tunc. TJpon complying with said order, defendant was granted a new decree, in all substantial respects like the first one.' It was a proper exercise of the court’s discretion to permit the amendment of the verification and the filing of a replication after decree. Had the questions arisen upon-the hearing, the power to do so would probably not have been questioned; but the questions were not raised then, and, when they were raised, were no more meritorious than they Avould have been upon the hearing. There is no legal impediment, for courts may permit amendments to the pleadings or proceedings after judgment. Hpw. Stat. chap. 264, and notes. 3 How. Stat. § 6231, provides that— “No divorce shall be granted unless the party exhibit [395] ing the petition or bill of complaint therefor shall have resided in this State one year immediately preceding the time of exhibiting such petition or bill, or unless the marriage was solemnized in this State, and the complainant shall have resided in this State from the time of such marriage to the time of exhibiting the petition or bill, and, when the cause for divorce occurred out of this State, no divorce shall be granted unless the complainant or defendant shall have resided within this State two years next preceding the filing of the petition or bill; and no proofs or testimony shall be taken in any cause until four months after the filing of such petition or bill for divorce, except where the cause for divorce is desertion, or when the testimony is taken conditionally for the purpose of perpetuating such testimony.” It is contended that 'this section applies to proofs taken in support of the defendant’s answer, because it is in the nature of a cross-bill, and contains a prayer for divorce. This construction requires‘an enlargement of the language used in the statute, which, strictly construed, applies only to the petition or original bill for divorce, which are the only instruments provided for the commencement of divorce proceedings. We are of the opinion that this provision of the statute was to prevent hasty divorces, and that the object is attained in four months from the filing of the petition or bill, as well where a crossbill is filed as where it is not. The proofs being seasonably taken, there was perhaps no necessity for the making of a second decree, which apparently was only made for prudential reasons. The mandamus will be denied. The other Justices concurred.