Harting v. Harting

ROBB, .Associate Justice. Appeal from a decree "in the Supreme Court of the District granting to appellee an absolute, divorce from appellant. On July 7, 1921, the appellant Harting filed a bill praying a divorce from appellee. On July 15th following Mrs. Harting filed an. answer and cross-bill, in which she sought a divorce a mansa et thoro. On September 16th following she filed a supplemental cross-bill, alleging that on September 8th preceding her husband had committed adultery with a'woman named. The allegations of the former bill were reiterated, and an absolute divorce prayed. On .November 8th following a further- supplemental cross-bill was filed by the wife, in which there were added specifications of adultery with the same woman. On April 24, 1922, which it will be noted was several months after the filing of the last supplemental cross-bill, appellant filed an “answer of plaintiff to'supplemental cross-petition.” , ■■ The case came on for trial, and the evidence tended to substantiate the averments of appellee’s cross-bills. Appellant and the corespondent both testified in denial of the charges. No obj'ection or exception was interposed by either party; appellant contenting himself with a notation of appeal from the decree. The contention now is made that the supplemental cross-bills were filed without leave of court, and without service of process upon appellant, and that, “if the hearing was upon either of them, such hearing was inadvertent, irregular, and erroneous.” It is unnecessary to discuss this contention, for two reasons: The first is that the answer filed by appellant clearly constituted a waiver of any informalities in the filing of the supplemental cross-bills. While it now is contended that this answer referred solely to the first supplemental cross-bill, the presumption is against appellant. Moreover, the answer purports to answer specifically the averments of para- . graphs 5, 6, and 7, while there were but six paragraphs in the first supplemental cross-bill, and seven paragraphs in the second. [939] The second reason is even more potent. Appellant interposed no objection to a trial under the pleadings, but participated therein, cross-examined witnesses for appellee, and introduced evidence in his own behalf. In such a situation, he waived any informalities in the pleadings; and had it been necessary to do so, the court would have been justified in directing that'the pleadings be reformed to conform to the case made. Fox v. Patterson, 43 App. D. C. 484. As to the contention that the evidence did not warrant the decree, we need observe only that in our view it fully measured up to the rule laid down by this court. Krous v. Krous, 41 App. D. C. 200; McKitrick v. McKitrick, 261 Fed. 451, 49 App. D. C. 109. The decree is affirmed, with costs. Affirmed.