McSherry v. McSherry

Thomas, J., delivered the opinion of thé Court. This is an appeal from an order of the Circuit Court for Frederick County, sitting as a Court of Equity, overruling a motion to strike out a decree of that Court, requiring the appellant to pay to the appellee the sum of one hundred dollars per month, as alimony and for the maintenance of their children. In December, 1906, the appellee filed a bill of complaint in the Court below against the appellant for a divorce, the guardianship and custody of their children and for alimony, etc. After stating the grounds for a divorce, the bill alleged: ³⁹⁷ “That your oratrix has uo means of her own for the support of herself and her minor children and is now living, with said children, at the home of her mother * * in Frederick City, Maryland; and the defendant, who is a practicing attorney of your Honorable Court and is seized and possessed of considerable estate, is contributing nothing to the support of his said family.” The defendant, the appellant, who was then a resident of Frederick County, Maryland, appeared and filed his answer on the first day of April, 1907, in which he replied to the above allegations of the bill as follows: “Your respondent answering the 6th paragragh of said bill denies that the plaintiff has no means of support for herself, but avers that she is entitled to the income of a trust created for her benefit by her father, as well as to the corpus of said trust fund, and further answering said paragraph your respondent admits that he is a practicing attorney of your Honorable Court, but denies that he is possessed of considerable estate, but on the contrary avers that he was compelled to execute a deed of trust of all his property to Emory L. Coblentz, for the benefit of his creditors, and is not in a position to contribute to the support of his said family at present.” On the same day a general replication was filed by the plaintiff, and leave was granted to the parties to take. testimony. On the 6th of May the “testimony on behalf of the plaintiff” was returned by the examiner, and counsel filed the following agreement: Agreement op Counsel.

Cornelia Ringgold McSherry C Ho. 8105 Equity. I In the Circuit Court for VS’ Frederick County, James Roger McSherry. J in Equity. To the Honorable the Judges of said Court: It is agreed by the parties to the above cause that the decree in said cause shall award to the plaintiff as alimony and for the maintenance of the children of the plaintiff and defendant, such sum or sums of money to be paid by the defendant as may be ³⁹⁸ hereafter determined by your Honorable Court, and that the amount of said alimony and maintenance be reserved by said decree for future determination upon the application of any of the parties in interest.

And it is further agreed that the rule of Court requiring testimony to lie in Court for ten days be waived. Urner & Urner, Sols, for Plaintiff. Prank L. Stoner, Sol. for Deft. On the 7th of May, 1907, the Court below passed a decree granting the divorce, awarding the guardianship and custody of the children to the plaintiff, and further providing, “that the said defendant pay to the plaintiff, as alimony and for the maintenance of the said children of the plaintiff and defendant, such sum or sums of money as may be hereafter determined by this Court upon the application of any of the parties in interest.” So far as the record in this Court discloses, there were no further proceedings in the case until the 10th of June, 1909, when the plaintiff filed a petition in the case, in which, after stating the provisions of the decree of 1907, she alleged: “2.

That since the passage of said decree the said defendant has been employed in the city of Chicago in the service of a railroad having headquarters in said city, but the nature of said employment and the extent of the defendant’s earnings have not been learned by your petitioner until recently; and your petitioner is now reliably informed and avers that the defendant is employed by the Chicago and Eastern Illinois Railroad Company, with offices at 625 La Salle Street Station, Chicago, Illinois, as claim agent of said company for the States of Illinois and Indiana, at a yearly salary of about three thousand dollars. 3. That the defendant has contributed nothing whatever to the support of your petitioner or his said children since October, 1906, and your petitioner has been, and is now, working for her livelihood and the support of said children.” The prayer of the petition was for a determination by the Court, ³⁹⁹ in accordance with, its previous decree, of the amount to be paid to the plaintiff as alimony and for the maintenance of said children. The petition was sworn to by the petitioner, and the Court passed the following order: “Upon the aforegoing petition and affidavit of Cornelia Ringgold McSherry, plaintiff in the above-entitled cause, it is ordered, determined and- decreed by the Circuit Court for Frederick County, in Equity, this 10th day of June, A. D. 1909. that James Roger McSherry, the defendant in this case, pay to said plaintiff, as alimony and for the maintenance of the children of the plaintiff and defendant, mentioned in these proceedings, the sum of one hundred dollars per month accounting from the date of this order, unless cause to the contrary be shown by said defendant on or before the 21st day of June, A. D. 1909; provided that a copy of said petition and of this order be served upon the said defendant or his solicitor of record, in this case, on or before the 12th day of June, A. D. 1909.” A copy of the petition and order having been served upon Frank L. Stoner, the solicitor of record for the defendant, or the 11th day of June, he filed an answer, stating that he was not “the attorney for the defendant in relation to the matters mentioned in said petition,” and that he had “no authority to represent the defendant,” in said matter. On the 30th day of June, 1909, the Couid below passed a decree, reciting the decree of 1907, the petition of the plaintiff, the order of June 10th, that a copy of said petition and order had been served upon the solicitor of record for the- defendant, that a copy of said petition and order had been mailed to the defendant, and that no cause to the contrary had been shown, and decreeing as follows: “It is thereupon, this 30th day of .June, A. D. 1909, by the Circuit Court for Frederick County, in Equity, adjudged, ordered and decreed, that the amount heretofore decreed to be paid by James Roger McSherry, the defendant in this case, to Cornelia Ringgold McSherry, the plaintiff, as alimony and for the maintenance of the children of the plaintiff and de ⁴⁰⁰ fendant, be and it is hereby determined to he the sum of one hundred dollars per month, accounting from the 10th day of June, A. D. 1909, and that the defendant pay to. the plaintiff the said sum of money per month, accounting from said date..” “Stoner & Weinberg, Attvs. of Record for J. Roger McSherry,” on the 29th of July, 1909, filed a motion to strike out said decree for the following reasons: “1st.

Because there was no service of process upon any person authorized to accept service. 2nd. Because the Gourt had no jurisdiction over said J. Soger McSherry at the time of entering said decree. 3rd. Because the defendant was a non-resident, at tbe time of the decree, beyond the jurisdiction of the Court 4th. Because