Foxwell v. Foxwell

Briscoe, J., delivered the opinion of the Court. On the 31st of October, 1911, the appellant filed a petition in Circuit Court No. 2 of Baltimore City, in which it is alleged, that on the 8th day of October, 1909, upon proper proceedings, a decree was passed by the Circuit Court of Baltimore City granting her a divorce a mensa el thoro, from her husband, H. Webster Foxwell, the appellee here, upon the ground of alleged abandonment, awarding her alimony and the custody of her infant child. The petition also avers, that after the passage of the above named decree and while the same was in full force, her husband filed a bill in Circuit Court No. 2 of Baltimore City, alleging abandonment by her, whereupon such pro ⁴⁷³ ceedings were had and on the 27th day of June, 3911, a decree was passed, granting her husband, the appellee a divorce a vinculo matrimonii from the appellant, his wife. The petition then avers that she is advised that the last-named proceedings were wholly unauthorized, the rendition of the decree a surprise and mistake because the Court was not informed as to the already existing decree between the parties.

The prayer of the petition is, that the decree be stricken out, and for other and further relief as may appear just and proper. The defendant in the Court below demurred to this petition upon the following grounds: (3) That the said petition is bad in substance and insufficient in law for the reason that the petition on its face shows that the Court has no jurisdiction to grant 1he relief prayed for therein. (2) That the petition fails to set forth any facts from which the Court could infer that the decree for a divorce a vinculo matrimonii wras passed by it on the 27th day of June, 1911, as the result of any legal surprise or mistake. (3) That the petition fails to show any valid reason why the said decree for a divorce a vinculo matrimonii was not appealed from in due course within the time prescribed by law.

The Court below sustained the demurrer and dismissed the petition, and from this order the petitioner has appealed. The docket entries in the case of H. Webster Foxwell v. Hattie M. Foxwell, in Circuit Court No. 2 of Baltimore City appear to be as follows: 6th April, 1911. Bill for divorce a vinculo matrimonii, filed. (1) Subpoena issued to St. Mary’s county; summoned. 23rd May, 1911.

Decree pro confesso against defendant and directing one of the examiners to take testimony, filed. 3rd June, 1911. Depositions filed. 23rd June, 1911. Order of reference, filed. 27th Jupe, 1911. Report of auditor and master, filed.

Same day — Decree divorcing plaintiff a vim ⁴⁷⁴ culo matrimonii from defendant and awarding to plaintiff the care and custody of the minor children. 31st October, 1911. Petition of defendant to have the decree heretofore passed in this cause struck out and order of Court thereon, filed. 9th December, 1911. Demurrer to petition, filed. 15th March, 1912. Order of Court dismissing petition, filed.

It will be thus seen, that notwithstanding, the second suit was filed on the 6th day of April, 1911, and the appellant was duly summoned to appear, and a final decree was passed on June 27th, 1911, the appellee waited until the 31st of October, 1911, long after the decree had become enrolled before taking any steps whatsoever to have the decree reversed, or stricken out. The general rule of practice is well settled in this State that final decrees or orders in the nature of' final decrees, after enrollment cannot be called in question, by mere petition, but must stand for what they purport to be, unless revised, annulled or reversed by a bill of review or by an original bill for fraud. Rice v. Donald, 97 Md. 396 ; Thruston v. Devecmon, 30 Md. 210 ; Straus v. Rost, 67 Md. 479 ; United Lines Tel. Co. v. Stevens, 67 Md. 156 ; Long Contracting Co. v. Albert, 116 Md. 114 .

In the recent case of Primrose v. Wright, 102 Md. 109 , we said, “but there are certain well defined exceptions to this general rule which are equally well established, where the procedure may be by petition. These are in cases not heard on their merits and in which it is alleged that the decree was entered by mistake or surprise or under such circumstances as shall satisfy the Court in the exercise of a sound discretion that the enrollment ought