Parkinson v. Parkinson

Kuhn, J.

This is an appeal from an order overruling a demurrer to the petition of complainant filed under the provisions of section 8686, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11534), which confers upon chancery courts jurisdiction to compel husbands to support their wives under certain circumstances. The facts which led up to thé filing of this petition are substantially as follows: Complainant and the defendant were married September 16, 1877, and lived together as husband and wife until some time in 1900, when it is claimed that the defendant deserted the complainant. In May of 1900 the defendant filed a bill for divorce in the Wayne circuit court. An answer was filed and the cause was discontinued in open court in January, 1901. In December, 1901, the defendant filed a second bill for divorce. Complainant appeared and a decree was given the defendant in July, 1902, but the decree was reversed by this court in September, 1903. In September, 1905, complaint having been made in the police court of the city of Detroit of the failure of the defendant to support complainant, an order was made by that court *338 requiring the defendant to pay complainant the sum of $3 per week, which has been done. Various grounds of demurrer are alleged, but the one argued before the court below and urged here is that the complainant has been guilty of laches in presenting her petition to the chancery court, and that therefore her petition should be dismissed.

In this connection, the first question discussed' is whether the question of laches can be raised by demurrer. That this can be done is well settled in this State, and it is only necessary to call attention to some of the authorities. McLean v. Barton, Har. Ch. (Mich.) 279; Campau v. Chene, 1 Mich. 400 ; Reynolds v. Green, 10 Mich. 355 ; Baent v. Kennicutt, 57 Mich. 268 ( 23 N. W. 808 ); Eames v. Manley, 121 Mich. 300 ( 80 N. W. 15 ); Judson v. Judson, 171 Mich. 185 ( 137 N. W. 103 ).

The court, in his opinion overruling the demurrer, expressed some doubt concerning the right of the defendant to demur or plead in this action, being in doubt whether the full chancery practice followed because the chancery court was given jurisdiction of the petition. As this question is not raised by complainant, it is not before us.

Conceding that the question of laches was properly raised by demurrer, which practice was recognized by this court in Meyerl v. Meyerl, 125 Mich. 607 ( 84 N. W. 1109 ), we are of the opinion that there is no merit in defendant’s claim that the petitioner should be barred because she has refrained from compelling defendant to adequately provide for her during the period which has elapsed between the time she claims the desertion took place and the time of the institution of these proceedings.

The mere lapse of time does not necessarily constitute laches. It must result in changing the position of the other party. Quinn v. Tully, 174 Mich. 30 ( 140 N. W. 492 ).

*339 . In the case of Stone v. Stone, 162 Mich. 319 ( 127 N. W. 258 ), to which our attention is challenged, one of the parties remarried after a divorce had been obtained in another jurisdiction while a suit for divorce had been pending in this State. It was held that the failure to press this suit for 13 years, during 8 of which complainant knew of the other divorce, and that, relying thereon, defendant remarried, would prevent her from objecting to a'dismissal of her bill. The court said:

“We are of opinion that it would be inequitable and against sound public policy to permit her to do so.”

In Reed v. Reed, 52 Mich. 117 ( 17 N. W. 720 , 50 Am. Rep. 247 ), where laches was held gross, a divorce had been -obtained in another jurisdiction and apparently was acquiesced in for 13 years, and the complainant remained apart from defendant against his will and in disregard of his repeated requests to return to him.

In the case of Judson v. Judson, supra, the demurrer was sustained on the ground of laches because the court found that no valid marriage existed and the parties were not husband and wife and never had been, in the State of Michigan.

In the instant case the petition charges desertion on the 24th day of July, 1900, and that defendant has refused to live with her from that time on, and that she was without fault and gave him no just cause for deserting her. Under our statute, the desertion must be continuous for a period of two years before she could file a bill for divorce on that ground. Can it be said to be less desertion if complainant concluded to show tolerance and wait for a longer period? The purpose of placing the period at two years was undoubtedly to prevent hasty action in alleging this ground for separation. Complainant has been patient *340 and overlooked the shortcomings of defendant. Her forbearance should not now be rewarded by denying-her relief if she is entitled to it.

The order of the court - overruling the demurrer is affirmed.

Steere, C. J., and Moore, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.