Rucker v. Rucker

Marbury, C. J., delivered the opinion of the Court. The issue in this case is the authority of an equity court to pass, on its own motion, an order requiring the complainant in a divorce action to show cause why an enrolled decree should not be striken out for fraud in its obtention. The question is prematurely presented by an appeal from an order refusing complainant’s motion to strike out the show cause order, and requiring complainant to answer. This is an interlocutory matter from which no immediate appeal lies here.

Although this appeal will have to be dismissed, the question presented, we think, should be discussed. The grounds upon which the show cause order was passed are contained in the order itself and are there stated by Judge Sherbow as follows: “On November 23rd, 1943, Addie F. Rucker filed suit for a partial divorce against John Ambrose Rucker in the Circuit Court No. 2 of Baltimore City (Docket 52-B-824/1943), alleging abandonment of the wife by the husband on October 14, 1942. This case was heard before his Honor, Chief Judge Smith, in open Court, and ⁵⁴¹ on March 20, 1944, he signed a decree dismissing the bill of complaint and awarding the custody of the infant children to the complainant, requiring the husband to pay $10.00 per week for the support of the children through the Probation Department of the Supreme Bench. “On May 31, 1944, the same complainant filed suit against her husband in the Circuit Court of Baltimore City for an absolute divorce based on the same abandonment of the wife by the husband on October 14, 1942. On July 19,1944, a petition was filed by the complainant stating that two successive subpoenas against the husband were returned ‘non est’ and praying for an order of publication.

The order of publication was issued, and no answer having been filed, on September 7, 1944, a decree pro confesso was taken before the Examiner, and thereafter the papers were referred to the Master, who approved the decree in this case. On December 8, 1944, a dcree was signed granting the complainant, Addie F. Rucker, an absolute divorce from her husband, John Ambrose Rucker, and awarding custody of the children to the said complainant. The divorce decree granted in the Circuit Court is based upon the same abandonment alleged in the case in the Circuit Court No. 2, which was decided adversely to the complainant. This Court is advised that neither the defendant nor his counsel knew of the pendency of the proceedings in the Circuit Court until after the decree had been obtained.” Here we have no question of the right of a defendant to attack an enrolled decree, either by bill of review or by petition.

Bailey v. Bailey, 181 Md. 385 , 30 A. 2d 249 ; Saltzgaver v. Saltzgaver, 182 Md. 624 , 35 A. 2d, 810 ; Croyle v. Croyle, 184 Md. 126 , 40 A. 2d 374 ; Hinden v. Hinden, 184 Md. 575 , 42 A. 2d 120 . Neither are here presented matters of defense which should have been raised before decree and which it is claimed the defendant is now estopped to raise. The rights of defendant are not before us. He is in Court on notice by publication after two non ests and so far as the record shows, ⁵⁴² has no actual knowledge of the proceedings.

He has made no application to this Court to strike out the decree of divorce against him. We have no knowledge whether he desires it stricken out or whether he is satisfied to have it remain. The question here is the right of the Court itself, when it is in