Scogna v. Scogna

46 App. D.C. 201, 1917 U.S. App. LEXIS 2528

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 6, 1917
• Docket: No. 2992
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

It was within the discretion of the court to entertain the motion to dismiss, notwithstanding answer had been filed. Moreover, after the first bill had been dismissed, and amendment filed, the cause was open to demurrer.

In our practice the motion to dismiss has been substituted for the former demurrer.

It was not error to dismiss the bill. Plaintiff took no exception and asked no additional leave to amend. The amendment did not materially change the allegations of the sixth paragraph of the original bill.

It appears from the bill that the sanity of the defendant was in question when she was permitted by the police authorities to leave the District, and that subsequently she was adjudicated insane in Chicago. If she was insane when she left the plaintiff’s house, she cannot be said to have an intention to desert him. She would not be responsible for such action.

It was incumbent upon the plaintiff to make it perfectly clear that she was not insane when she deserted him, and that it was not with his permission that she did so, in order to entitle him to a decree for separation.

Having failed to do this, his bill was properly dismissed.

The decree is affirmed with costs. Affirmed.