Simms v. Simms

Mitchell, J., delivered the opinion of the Court. By docket entries appearing in the record, it is shown that on July 1st, 1935, the appellant filed in the Circuit Court of Baltimore City a bill of divorce a vinculo matrimonii, against the appellee. The case was docketed as A1 Simms v. Lena Simms, but as shown by the petition to which reference is heinafter made, the true names of the parties, respectively, are Aloysius P. Simms and Lena M. Simms. ³⁵² An order of publication was published against the defendant, who failed to appear to the suit, and in due course a decree pro eonfesso was passed, testimony taken in support of the allegations of the bill, and a decree of divorce as prayed granted, as of November 4th, 1936. On December 20th, 1939, the defendant in the above proceedings appeared, and filed a petition which, in substance, sets out the following allegations: (a) That the above bill filed by her husband alleged that she had abandoned the plaintiff on March 15th, 1930, and that said abandonment had continued uninterruptedly since that date; (b) that the plaintiff was then and had for more than two years been a resident of Baltimore City, and that the defendant (petitioner) was a non-resident of the State of Maryland, and (c) that the petitioner had no knowledge of á&id divorce proceedings until in June, 1937, at which time she instituted proceedings in the District Court of the United States for the District of Columbia against the complainant, praying, among other things, for alimony pendente lite and permanent, which suit she continued to prosecute until the month preceding the filing of said petition, when she was advised that a proceeding .to have the said divorce decree annulled and vacated, in the court which had passed the decree, rather than further prosecuting her suit in the District Court of the United States for the District of Columbia, would, under the facts, be the expedient course for her to pursue.

The petition further submits that the Circuit Court was without jurisdiction to consider the bill of complaint or to pass the aforesaid decree, for reasons as follows: (1) That ever since the marriage of the parties, which occurred on June 4th, 1912, both of them have continuously resided in the District of Columbia, and (2) that the filing of said bill of complaint was, in effect, a gross fraud practiced upon the Circuit Court as well as a fraud and surprise practiced upon the petitioner and her rights, in that both of the parties in the suit were, at the time it was instituted and prosecuted, non ³⁵³ residents of the State of Maryland. It is then set forth therein that the complainant in the divorce proceedings abandoned and deserted the petitioner some time during the year 1931, and that testimony in the case, as submitted to the chancellor who passed the decree, was falsified as to the residence of the respective parties and in other respects, all of which information the petitioner had acquired on or about the month of October, 1939. An order nisi was passed on the petition, served on appellant’s counsel of record, and thereafter a demurrer was filed by the appellant on the grounds, (1) that a bill of review or original bill and not a petition would be the appropriate proceeding; (2) that no allegation of change of status or parties to the proceedings was alleged, and (3) laches. Upon a hearing on the demurrer, the same was overruled, the chancellor ordering that the complainant in the divorce proceedings be required to answer the petition under oath.

From that order this appeal was taken. Section 201 of article 16, of the Code of Public General Laws of this State, provides that all final decrees, and orders in the nature of final decrees, shall be considered as enrolled from and after the expiration of thirty days from the date of the same. And the general rule is that a decree or decretal order, after enrollment, can be revised or annulled only by a bill of review or original bill for fraud, and not by a petition. In other words, after a decree is enrolled, it is, ordinarily, allowed to stand for what it purports to be on its face, until revised or reversed in a more solemn manner than can be done by petition.

Thurston v. Devecmon, 30 Md. 210 ; Downes v. Friel, 57 Md. 531 ; Trayhern v. Nat. Mech. Bank, 57 Md. 590 ; Miller’s Equity Procedure, sec. 287. But, as set forth in section 288 of the latter authority: “There are certain well defined exceptions to the general rule, equally well established as the rule itself, in which this procedure may-be by petition instead of by bill of review or