Stern v. Stern

2 D.C. 186

• Court: District of Columbia Court of Appeals
• Decided: July 1, 1935
• Docket: Equity No. 51581
• Status: Published

Opinion

MEMORANDUM

ADKINS, J.

On June 25, 1932, a final decree was signed in the cause granting plaintiff a limited divorce from defendant.

On J anuary 7, .1936, plaintiff filed in this cause a petition for the enlargement of that decree into a decree for absolute divorce under the act of August 7,1935, Public No. 252. This statute provides that under certain circumstances a final decree of divorce from bed and board may be enlarged into a decree of absolute divorce.

Plaintiff prayed both for a writ of subpoena to be served on defendant and for a rule to show cause. Only a rule was issued. It was signed January 7, 1936, returnable February 3, and was served January 11, less than twenty days (exclusive of Sundays) from the return day.

Defendant appeared specially and pleaded to the jurisdiction. He contends that the proceeding must be by separate suit and that he can be brought in only by summons under Section 1536 of the Code.

1. In my judgment the proceeding may be either by a new suit or by a petition in the old suit.

2. In many of these cases the defendant has been brought in by rule to show cause; his appearance in response thereto is sufficient to give the court jurisdiction. But where, as here, defendant refuses to appear, I think the petitioner must proceed by summons under Section 1536 of the Code.

Therefore the prayer of defendant’s plea that the rule to show cause be discharged will be granted, but his prayer that the petition be dismissed is denied.