Kinsel v. Kinsel

Long, J. This is a petition filed by defendant for leave to file a bill for review in a divorce proceeding. The court below refused to grant the prayer of the petitioner. Petitioner appeals. It appears that in November, 1897, Lizzie E. Kinsel, the petitioner and defendant in the present case, filed a bill for divorce in the Alpena circuit court, in chancery, making her husband and his brother parties defendant. She obtained an injunction restraining them from disposing of certain funds in the hands of the brother. The defendants in that case both answered the bill, the husband’s answer being in the nature of a cross-bill, counter-charging the complainant with extreme cruelty, and praying for an absolute divorce and the custody of the two children, a boy aged 11 and a girl 9 years of age. Thereafter the parties met and made a settlement of their differences, the husband deeding to the wife the house and lot occupied by them as a home, which the proofs show was [694] worth some $2,000, and which Mr. Kinsel testified cost him over $5,000. He also paid the costs of the proceeding and $100 to the complainant’s solicitors. Mr. Kinsel thereafter went to Detroit, taking the boy with him, and leaving the girl with his wife. After being there for a time, he commenced proceedings in the Wayne-circuit court, in chancery, against his wife. She answered the bill. The case was noticed for hearing. The notice was served on Mrs. Kinsel’s solicitors on Sunday afternoon, April 8th, that the case would be heard on April 10th. Mrs. Kinsel and her solicitors lived in Alpena, and had only 24 hours to get to Detroit, a distance of 250 miles, and could not reach the court in time for the hearing. The complainant in the cause proceeded with the hearing, and took a decree of divorce in the absence of the defendant and her solicitors, giving the husband the care and custody of one of the children. The petitioner shows that the grounds for divorce set up in this bill are the same as those set up in the former case, which she claims, were condoned in the settlement of the former divorce case, and that after such settlement the parties lived and cohabited together as husband and wife. We think the petition stated such facts as entitled the-petitioner to file a bill of review. The order of the court below must be set aside, and an order entered granting leave to defendant to file a bill of review. She will recover against the complainant costs in the present proceeding of $25, and $25 solicitors’ fees. The other Justices concurred.