Steele v. Steele

35 Conn. 48

Opinion

Butler, J.

Footnotes

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This case comes before us by motion in error and a motion for a new trial, but the material questions raised are few, and a particular or separate notice of the motions is not necessary.

The petitioner was married in this state, but went to reside with her husband in another state, and thereby lost her domicil here and took his there. She was there ill treated and deserted, and returned to this state; and after the lapse of about sixteen months only, brought her petition for a divorce, which was served on the respondent, and he appeared to defend. When she brought her petition she had no right to a divorce; but the petition was suffered to lie in court until three years had elapsed from her return here, when a supplemental bill, as it is termed, was filed, and the parties had a hearing, and she was divorced.

The argument of the petitioner assumes that the application for a divorce is a proceeding in equity, and governed by its rules; and that she had an equitable right to file a supplemental bill, because her right to a divorce was inchoate when the original petition was served, but became perfect before that supplemental bill was filed. To these propositions we can not accede.

Generally parties to contracts may rescind or dissolve them by mutual consent; but marriage, although effected by a contract, establishes a relation, which the parties can not rescind or dissolve, and which can not be annulled by any proceeding known to our common law, or our system of equity. Divorce is therefore in this state the special creature of statute. Like other statutory and special applications to the Superior Court for special relief, it is commenced by petition; but it is not for that reason a proceeding in equity, nor does its intrinsic character, or the statute which authorises it, make it such a proceeding, and the petitioner could not claim a right to,file the bill.

But the manner in which the Superior Court shall proceed to hear and determine the application, and the rules by which it shall be governed, are not prescribed by the statute, and both are left to its discretion. In the reasonable exercise of that discretion the court may adopt the rules of the common law, or of equity, so far as the exigencies of the case may require. The action of the court in permitting the petitioner to file a supplemental petition was not therefore void. But in our judgment it was not a reasonable exercise of its discretion, and is not a precedent to be sanctioned. The petitioner had no inchoate right when the original petition was brought, and the practice, if sanctioned, would lead to abuse of our laws, and tend to encourage and invite such application from abroad — a result which the General Assembly and this court have always sought to avoid. If therefore it appeared upon the record in this case that the respondent objected, in time, to the action of the court in that respect, we should unhesi tatingly hold that action erroneous.

At the time the supplemental bill was filed the petitioner had resided three years in the state, and was entitled to a divorce. The court then had jurisdiction of the subject-matter of the petition. The respondent was then in court defending against the original petition,'and as to that the court had jurisdiction of his person; bút on that petition alone and the facts found the court could not have passed a valid decree of divorce. The supplemental bill was filed as part of that proceeding. But the respondent was not bound to submit to it. He did, apparently, submit, for he continued to submit, without any objection which appears of record, to the jurisdiction of the court as to the whole case until after it was heard; and if he did so in fact, he waived the error and can not now complain. The cases are numerous in our reports wherein this court has liolden a party subject to the jurisdiction of the court, and bound by its proceedings although erroneous, because he submitted to them without objection until after a hearing upon the merits of the case. The last one, Woodruff v. Bacon, may be found in the present volume.

The respondent, however, insists that he did not in fact submit to the jurisdiction, and that he can not be liolden to a waiver.

He says, in the first place, that he had no knowledge of the supplemental bill until alter the hearing, and therefore could not have assented, and did not assent to or answer it. But this claim we are not at liberty to regard. The paper was regularly filed with the clerk as part of the proceedings in the case, and there is nothing in the record to show that it was not known to his counsel before or at the hearing; and it was not objected to in the subsequent remonstrance, and is not alluded to as a ground for a new trial, or assigned as error. Moreover, it does appear in the motion that the counsel for the petitioner claimed that the trial was on the supplemental bill, and does not appear that the fact was denied. It is an unsupported claim therefore, made for the first time in the argument, and can not be regarded.

The respondent insists, in the second place, that he can not be holden to a waiver, because the statute is imperative, that no divorce shall be granted in such a case, unless the applicant had resided three years in the state before the “ dale of the petition.” This objection would undoubtedly be fatal, if the decree had been based on the original petition alone. But we see nothing in the statute to prevent the court from granting a divorce to which the party was entitled after the lapse of the three years, if the respondent then submitted to the jurisdiction of the court, and an amendment of its proceedings, which does not exist in any other case. By the terms “date of the petition” the General Assembly undoubtedly meant the commencement of the proceeding. The provision of the statute in question was enacted in 1797, and has re mained in force and unaltered through all the compilations since made. At that time the issuing of the writ in the Common Pleas, or the exhibition of the bill, or issuing of the latitat in the King’s Bench, were the commencement of the action in England; and the law of England was our law, until altered by the legislature or the courts. The General Assembly did not alter it; nor had it been changed by any decision of the Supreme Court, when Judge Swift published his System in 1796. (See Volume 2d, page 187.) There had been an earlier decision of the Superior Court looking that way, but Judge Swift did not regard it. The first decision of the Supreme Court altering the law, and making the service instead of the issuing of the writ the commencement of the action, was in 1801; but that case was not reported, and it was not till 1822 that the rule was fully and finally settled in Jencks v. Phelps, 4 Conn., 149. The date and time of issue are usually the same, and by the terms “ date of the petition” therefore, the General Assembly intended the commencement of the proceeding and nothing more; and there is nothing peculiar or technical in the statute to prevent a submission to the jurisdiction and a waiver of error in a case like this as in other cases.

The respondent further insists that he could not waive, because ho says that waiver implies collusion. It is certainly possible that a respondent may so waive defects, irregularities, or errors in the proceedings upon an application for a divorce, as to authorize the court to presume collusion and deny the petition. But waiver, especially of a jurisdictional fact which does not affect the right, does not necessarily import collusion; and it certainly can not be presumed in a case contested as this has been.

For these reasons we think there is no error in the record, and do not advise a new trial.

In this opinion the other judges concurred.

This case having been submitted on briefs, Judge Butler took part in the decision, though not present at the term.