Wyahllyeth v. Wyahllyeth

Sloan, J., delivered the opinion of. the' Court. On September 28th, 1937, Walter Wyahllyeth filed a bill for absolute divorce, on the ground of abandonment, against his wife, Margaret E. Wyahllyeth, who, he alleged, had deserted him in September, 1932; that she was “a nonresident and when last heard from was living ⁴¹⁹ in New York City, New York.” The defendant was summoned by publication, and on her failure to appear and answer, a decree pro confesso was passed, testimony taken before an examiner, the case referred to a master, and on January 8th, 1938, the plaintiff granted a decree of divorce. On December 6th, 1938, the defendant filed a petition praying the court for an order to strike out the decree and allow her to file an answer to the bill of complaint. The plaintiff demurred to the petition and gave as grounds of demurrer that the petition did not show that the decree, which became enrolled February 10th, 1938, was granted as a result of any legal mistake, fraud, or irregularity, and that it showed on its face that the parties had been living apart more than three years, that he was a resident of Baltimore, and she of New York when the bill was filed.

The demurrer was overruled, and an answer filed, which was a repetition of the matters alleged in the demurrer. Testimony in support of the petition was taken, and an order passed vacating the decree of January 8th, 1938, and allowing the defendant thirty days to answer, from which the plaintiff appeals. In the petition and affidavit of the defendant annexed to the petition as part of it, the defendant stated that the parties were married at Washington, D. C., March 11th, 1903, and lived together continuously until 1932, at which time they resided in New York, when, the petitioner said, her husband had abandoned her, saying he was going to Baltimore to work, and that he was leaving her. She heard from him occasionally, and at various times, until about the year 1936, he sent her small sums of money.

She says that each of them had a house at Keansbury, New Jersey, which were located near each other. She was employed in New York, and went to Keansbury over week-ends, and at the same time he was living in his house with another woman. In spite of this