Wilson v. Wilson

Michigan Supreme Court

Wilson v. Wilson

41 N.W. 817, 73 Mich. 620

CourtMichigan Supreme Court

DecidedFebruary 1, 1889

StatusPublished

Cited by19 cases

This text of 41 N.W. 817 (Wilson v. Wilson) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wilson v. Wilson, 41 N.W. 817, 73 Mich. 620 (Mich. 1889).

Pincite

Opinion

Campbell, J.

In this case complainant filed a bill for [621]*621divorce against defendant on the alleged ground of desertion. She filed an answer, denying any such cause of complaint, and made counter-charges, asking a divorce on her own behalf for his cruelty. The cause was submitted for decision, but complainant died before it was decided. The circuit court of Branch county nevertheless made a decree, and directed it to relate back to a period before his death; thereby granting a divorce in favor of complainant, and at the same time giving alimony to defendant. She appeals.

The bill and answer below were simple divorce proceedings, aimed at no relief not dependent on divorce. In such a case there can be no decree after death has separated the parties. The doctrine of relation does not apply in such a case. There must be living parties, or there can be no relationship to be divorced. Zoellner v. Zoellner, 46 Mich. 511 (9 N. W. Rep. 831). It follows that, as the parties were still husband and wife when the husband died, she has all the rights and conditions of any other widow. It is fallacious to claim that a decree apparently rendered during complainant’s life, and therefore apparently valid, cannot be appealed from. An appeal lies from every decree in chancery which purports to be final, and its illegality is a conclusive reason why it should be reversed, as this decree must be.

We think no cause existed for the decree, even if it had been timely rendered, and we should be disposed to make defendant an allowance if it were not for the difficulty of providing in this Court, under all the circumstances, for such relief. But, as the widow’s interest in her husband’s estate entitles her to allowances in the probate court as well as otherwise, the hardship is somewhat lessened. We cannot, after her husband’s death, consider her claim to divorce as an injured party, and [622]*622must satisfy ourselves with merely reversing the decree as unlawfully rendered.

Champlin, Morse, and Long, JJ., concurred. Sherwood, C. J., did not sit.

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Campbell, J.

In this case complainant filed a bill for [621]*621divorce against defendant on the alleged ground of desertion. She filed an answer, denying any such cause of complaint, and made counter-charges, asking a divorce on her own behalf for his cruelty. The cause was submitted for decision, but complainant died before it was decided. The circuit court of Branch county nevertheless made a decree, and directed it to relate back to a period before his death; thereby granting a divorce in favor of complainant, and at the same time giving alimony to defendant. She appeals.

The bill and answer below were simple divorce proceedings, aimed at no relief not dependent on divorce. In such a case there can be no decree after death has separated the parties. The doctrine of relation does not apply in such a case. There must be living parties, or there can be no relationship to be divorced. Zoellner v. Zoellner, 46 Mich. 511 (9 N. W. Rep. 831). It follows that, as the parties were still husband and wife when the husband died, she has all the rights and conditions of any other widow. It is fallacious to claim that a decree apparently rendered during complainant’s life, and therefore apparently valid, cannot be appealed from. An appeal lies from every decree in chancery which purports to be final, and its illegality is a conclusive reason why it should be reversed, as this decree must be.

We think no cause existed for the decree, even if it had been timely rendered, and we should be disposed to make defendant an allowance if it were not for the difficulty of providing in this Court, under all the circumstances, for such relief. But, as the widow’s interest in her husband’s estate entitles her to allowances in the probate court as well as otherwise, the hardship is somewhat lessened. We cannot, after her husband’s death, consider her claim to divorce as an injured party, and [622]*622must satisfy ourselves with merely reversing the decree as unlawfully rendered.

Champlin, Morse, and Long, JJ., concurred. Sherwood, C. J., did not sit.

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Bluebook (online)

41 N.W. 817, 73 Mich. 620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-wilson-mich-1889.

Opinion

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