Bailey v. Bailey

⁷⁸ Grason, J., delivered the opinion of the Court. On December 7, 1944, Mary Irma Bailey (appellant) filed in the Circuit Court No. 2 of Baltimore City a bill of complaint against her husband, Clarence M. Bailey, Jr. (appellee) in which she charged that appellee was guilty of the following offenses: (1) excessively vicious conduct; (2) failure to adequately support appellant for a considerable period of time; (3) that he was guilty of adultery with divers women, some of whom could be fully identified if it became necessary to do so; (4) that he abandoned and deserted her on the 6th day of December, 1944. She avers that her conduct has always been proper and above reproach, and prays: (1) for a divorce a vinculo matrimonii; (2) for a resumption of her maiden name; (3) for alimony pendente lite and permanent alimony; (4) for counsel fee and general relief. Appellee, in his answer, denies these charges and calls for strict proof that her conduct has been proper and above reproach.

The bill also charges that the parties were married on January 16, 1941, in Baltimore City, are residents of said city, and that no children were born of the marriage. These allegations are admitted in the answer. The case was heard in open court on March 12, 1945, and concluded the same day. The court at that time stated that he would grant the appellant an absolute divorce on the ground of adultery, allowing permanent alimony and counsel fee, and permitting her to resume her maiden name.

A decree was accordingly filed on the 14th day of March, 1945. Thereafter, on the 10th day of April, 1945, appellee filed a petition in the case, in which he averred that the testimony theretofore taken tended to show that he committed adultery with one Madeline Moltz; that there was no allegation in the bill of complaint naming Madeline Moltz as a co-respondent; that he had no reason to summon her, and that therefore she was not in court when the testimony was taken; that he was wholly unprepared to offer ⁷⁹ the testimony of Madeline Moltz and unable to secure her attendance at the hearing of the cause. The petition further, in substance, avers that if given an opportunity he could show that he was not in Baltimore at the time and place that the evidence tended to show he was when the act of adultery was committed by him with the said Madeline Moltz. The petition prayed, in part, that the decree be stricken out; that there may be a rehearing in the cause to let in the testimony which your petitioner lacked an opportunity to offer when the cause was heard.

This petition was sworn to and the court passed an or der, dated the 10th day of April, 1945, for the appelant to show cause why the decree entered on the 14th day of March, 1945, should not be stricken out and a rehearing of the cause be granted as prayed. The chancellor added to the order the following: “Ordered this 10th day of April, 1945, the court will hear additional testimony any date counsel agree upon, and let final order hereon abide the taking of such testimony, notice being given to the opposite side.” This order was signed by the chancellor who heard the case. The case was taken up in open court on April 24, 1945, the parties hereto and their respective solicitors were present, and further testimony taken. Counsel for appellant then objected to the rehearing of the case, asserting that the court had no power, after decree, to take further testimony.

On the 26th day of April, 1945, the court passed the following order: “Ordered, by the Circuit Court No. 2 of Baltimore City, on the Court’s own motion, this 26th day of April, 1945, that the Respondent, Clarence M. Bailey, Jr., be, and he is hereby given until 10 A. M. Friday, May 4th, 1945, to produce the corroboration of persons who saw him on the night of Friday, October 13, 1944, on the trip he claims to have taken with one William C. Bowen, to Westminister, Emmitsburg, Thurmont, Frederick, etc., and that the said William C. Bowen produce by the same time and date his “C” automobile ration registration, or copy of his application therefor, ⁸⁰ with the opportunity to both sides to produce at that time any additional testimony desired by either; and it is further ordered that, in the meantime, the said Respondent, Clarence M. Bailey, Jr., pay all court costs in this case, including all additional Court costs incurred on his petition to take additional testimony.” From the order of court passed on the 10th day of April, 1945, granting leave to appellee to reopen the case, appellant appealed, which we will now consider. The decree dated the 14th day of March, 1945, granting the appellant an absolute divorce, had not become enrolled. Code, 1939, Art. 16, Sec. 207. Section 209 of that Article provides: “Every petition for rehearing shall contain the special matter or cause on which such hearing is applied for, and shall be signed by solicitor or the petitioner himself, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party, or by some other person.” The matters set forth in the petition did not appear upon the face of the record, and the petition was sworn to.

In Miller’s Equity Procedure, Section 285, it is said, in part: “Before a decree is enrolled it is entirely within the province of the court to revise it, the decree being subject to the control of the court until enrollment. It may be altered, revised or entirely revoked upon application to the court by petition.” And the same author, in Section 286, says, in part: “A rehearing is a new hearing and a new consideration of a case by the court in which the suit was originally heard, and upon the pleadings and depositions already in the case. A petition for a rehearing is the proper method of correcting, before enrollment, errors in a decree which are not evidently clerical or accidental. Upon an application for a rehearing, the matter rests in the discretion of the court, and no appeal lies from its action, whether the rehearing be refused or allowed.

The proceeding is analogous to a motion for a new trial at common law. A motion for a rehearing does not suspend the operation of the decree. An application for a rehearing is made by ⁸¹ a petition. It is provided that every petition for rehearing shall contain the special matter or cause on which such rehearing is applied for, and shall be signed by solicitor or the petitioner himself, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party, or by some other person.

No rehearing shall be granted after the enrollment of the decree or decretal order.” In Long Contracting Co. v. Albert, 116 Md. 111 , at page 114, 81 A. 265 , at page 266, Ann. Cas. 1913 B, 1,259, this court said: “There can be no question that until enrollment such decrees are entirely under the control of the court, and may be revised, modified, or revoked upon -proper grounds shown. It is well settled, however, that a petition filed in the same proceedings, for a rehearing, and not an original bill, is the proper method of correcting, before enrollment, errors in a decree, not merely clerical or accidental.” Such a petition is addressed to the sound discretion of the court, and in the absence of abuse thereof no appeal will lie. Zimmer v. Miller, 64 Md. 296 , at page 299, 1 A. 858 . “If the decree was by mistake, his claim to relief before enrollment was undoubted.” Herbert v. Rowles, 30 Md. 271 . The petition in this case was filed before the decree of April 10,1945, became enrolled.

The matters it contained did not appear upon the face of the proceedings, and such matters there appearing, if established by proof, might well cause the court to think a mistake was made in the granting of the decree. The court properly passed his order granting a rehearing and it being a matter in its discretion, no appeal from its action will lie to this Court and the appeal from the order granting a rehearing is dismissed. On May 10, 1945, the chancellor passed a decree which vacated and annulled the decree entered in the cause on the 14th day of March, 1945, and dismissed appellant’s bill of complaint. From this decree appellant also appeals. ⁸² The only question pressed before this court was: Did appellee commit adultery?

The other charges contained in the bill of complaint need not be considered. The marriage of these parties was an unhappy one. From the first there was contention about money matters, bills, and the husband staying out late hours at night. In the fall of 1944 the appellant engaged a private detective to follow her husband and report to her what he might discover.

Two dates are important in this case. One is the night of October 13, 1944, and early morning of the 14th, and the other is the night of November 1, 1944, and the early morning of November 2d. The appellee, Mrs. Moore, and Miss Moltz, on the dates in question and for some time prior thereto, were employed at the Eastern Stainless Steel Corporation, an im dustry then engaged in war production work, in the southeast section of Baltimore County. It is well known, at that time, in order to save gasoline and automobile tires, an owner of an automobile was required to take coworkers to and from the place of their common employment.

Appellee took these two young women with him to and from work. Louis J. Barth, a private detective, accompanied by Leo Zimmer, a brother of the appellant, went to the place of employment of appellee at 12.25 A. M., (really the morning of October 14, 1944). He testified he saw, at that time, Bailey leave there in his car, accompanied by two women. He followed them to the 1700 block Montpelier Street, where one of the girls got out.

From there appellee continued to the 400 block North Rose Street, where he parked. The detective and Zimmer parked some 20 feet in the rear of the appllee’s car. The girl whom appellee is said to have had with him, and who turned out to be Madeline Moltz, lived on Rose Street with her parents, and appellee’s car was parked in front of her parents’ home. Appellee was driving a Chrysler coupe, and in the back of the same is a window.

Both cars had their lights off and the evidence does not show that there was any street light in close proximity. The detective says it was dark in appellee’s car. He and Zim ⁸³ mer testified that they looked through the windshield of their car, through the window in the rear of appellee’s car, 20 feet distant, in the dark, until 2.40 A. M., when the girl got out and entered her home, 428 North Rose Street. During that time, both the detective and Zimmer testified, neither appellee nor the girl got out of the car; that they saw them “loving up,” embracing and kissing, and about ten minutes after this performance both slumped down in the seat out of view and that once in a while they saw “subject’s head come up and then he would disappear from view.

At 1.35 A. M. both Bailey and the girl came up into a sitting position and the girl adjusted herself and both began to “love up again.” His testimony of what he saw on November 1, 1944 (really November 2, 1944) when he was also accompanied by Zimmer, is strikingly like the description of the performance on the night and early morning of October 13th and 14th. He saw Bailey at 12.15 A. M. leave his place of employment with the two girls; he followed him to the 1700 block Montpelier Street, where one girl got out, and appellee continued to the 400 block of North Rose Street, where he parked. He described on that occasion the same identical scene that he described as having occurred on the first date. At 2.40 A. M. the girl got out of the car and entered her home.

On neither occasion, while he watched so long, and although he was accompanied by Zimmer, did he or Zimmer, or both of them, get out of their car, parked 20 feet in the