Wagoner v. Wagoner

Fowler, J., delivered the opinion of the Court. Rebecca Wagoner, the appellant, filed a bill in the Circuit Court for Carroll County, alleging that her husband, the appellee in this case, had been guilty of adultery prior to the year 1878, and during other specified years as late as 1882, and praying for a divorce a vinculo. To the bill the appellee pleaded res adjudicata, to which plea the complainant demurred. And the question presented by the demurrer is whether the suit so pleaded is a complete bar to the present proceedings.

The Court below overruled the demurrer and ruled the plea to be good. There is another question, however, which, though presented by the record and referred to in the brief of the appellant's counsel, was not argued, and that is the question arising on the motion filed by the appellant in the Court below to strike out the pleas, on the ground that they were not properly verified- — the appellee having made affidavit that his pleas were true in point of fact,but having failed to made affidavit, as required by section 136 of Article 16 of the Code, that they were not intended for delay. This motion does not appear to have been called to the attention of the Court below, and the final decree from which this appeal is taken, although upon its face it purports to pass only upon the demurrer, does, in effect, declare that the pleas shall be sustained notwithstanding they failed to comply with the requirements of the Code referred to. If the usual and well-settled practice had been followed in this case, the motion which is equivalent to an exception to the pleas, would have been ³¹⁴ set down for hearing, and the validity of the pleas, so far as they were questioned by the motion, would have been necessarily passed upon.

And, inasmuch as the failure to make the affidavit required is a fatal defect when seasonably and properly pleaded, the motion would have prevailed, and the pleas would have been amended, or such other proceedings would have been taken, so as to present the question which was argued at bar. Although we will be compelled to reverse the decree appealed from, for the reason above given, we will consider briefly the question raised by the demurrer, that being the important question in the case, and the only one which was fulty argued by counsel. , The bill filed in this case on the 6th of May, 1892, alleges that prior to the year 1878, and during certain specified years from 1875 to 1882, or some of them, the defendant had been guilty of adultery and had communicated to her a venereal disease or diseases. The pleas allege that on the 7th November, 1885, the appellant filed a bill in which as the ground of her claim for a divorce a vinculo, she alleged that the appellee had been guilty of adultery at various times and on various occasions during the years 1883 and 1884, and on two occasions during the month of October, 1885; that this bill was duly answered by the appellee, and such other proceedings were had on said bill and answer that said bill was dismissed by the decree of the Circuit Court for Carroll County, on the 13th December, 1886. The question, therefore, is whether the bill filed in this case in 1892, alleging adultery committed prior to 1878, and during the years of 1875, 1876, 1877, 1878, 1879, 1880, 1881 and 1882, or some of them, is barred by a bill filed on the 7th of November, 1885, alleging adulteries committed in 1883, 1884, and in the month of October, 1885, and which last named bill was, as alleged in the plea, dismissed by final decree.

It is true