Sell v. Sell

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This action for divorce was instituted by Hattie Sell in January, 1913. Issues were joined and the cause was tried during the same year, resulting in a decree in favor of the plaintiff; but thereafter, by stipulation of, the parties, the decree was set aside and a new trial granted. On November 14, 1918, the cause was set for trial for November 29, at 10 o’clock A. M., but, when that hour arrived, the plaintiff was not personally present in court, and a continuance was granted until 2 o’clock P. M., at which time, the plaintiff having failed to appear personally, the court ordered her default entered, heard the testimony offered by the defendant, and thereafter rendered judgment to the effect that plaintiff and defendant had not at any time “sustained the relation one to the other of husband and wife.” Plaintiff has appealed from an order refusing to set aside the default, from an order denying her a new trial, and from the judgment.

(1) Whatever may be said of the propriety of the court’s order [1] entered on November 29, 1918, it did not affect adversely any substantial right of the plaintiff. Her attorney was present and participated in the trial by examining the defendant’s witnesses, and otherwise. In legal effect, the order amounted to nothing more than a declaration that the plaintiff had failed to be personally present at 'the time of trial, and in that sense the term “default” is not infrequently used. (Leahy v. Wayne Circuit Judge, 144 Mich. 304 , 115 Am. St. Rep. 443 , 107 N. W. 1060 .) It is elementary that a judgment by default cannot be entered against a party so long as he has *332 an appropriate pleading on' file in the case (sec. 6719, Rev. Codes), and the judgment rendered in this cause does not purport to be, and is not in fact, a judgment by default. It was unnecessary for plaintiff to move to have the default set aside. No useful purpose would h'ave been served if the motion had been granted, and its denial does not constitute error.

(2) The trial court did not err in refusing plaintiff’s motion for a new trial. The bill of exceptions was not prepared .within the time allowed by - law or the order of the court. (Wright v. Matthews, 28 Mont. 442 , 72 Pac. 820 ; Canning v. Fried, 48 Mont. 560 , 139 Pac. 448 .)

(3) The appeal from the judgment presents the question: [2] Was the trial court authorized to render and have entered a judgment which assumes to determine that plaintiff and defendant were never married? The material- allegations of the complaint were put in issue by the answer, and the. burden was thereby imposed upon the plaintiff to produce evidence in support of her cause of action. Her failure to be present at the trial or to offer any evidence in behalf of the allegations in her complaint which were traversed by the answer constituted, in effect, an abandonment of her cause and authorized the court to render a judgment of dismissal or nonsuit (sec. 6714, Rev. Codes); but-the court was not authorized to proceed further unless the answer contained a counterclaim or new matter constituting a defense which would warrant affirmative relief in defendant’s behalf. (Keator v. Glaspie, 44 Minn. 448 , 47 N. W. 52 ; Diment v. Bloom, 67 Minn. 111 , 69 N. W. 700 ; 2 Thompson on Trials, 2d ed., sec. 2229.)

The answer does not assume' to state a counterclaim. [3-6] Defendant does not set forth any cause for divorce or pray for a dissolution of the marriage; on the contrary, he denies the existence of the marriage. The only portion of the answer which it is contended sets forth new matter within the contemplation of our statute is found in paragraph 1 of defendant’s further and separate answer, and is *333 as follows: “That this answering defendant is not now, and never was, married to the plaintiff in this said action.” In Stephens v. Conley, 48 Mont. 352 , Ann. Cas. 1915D, 958, 138 Pac. 189 , this court was called upon to determine the meaning of the term “new matter” as used in our Practice Act, and held that, if the facts stated in the answer can be proved under a denial of the allegations of the complaint, they do not constitute new matter. Of the correctness of that conclusion we entertain no doubt whatever. The allegation in the complaint that at the time this action was commenced, plaintiff and defendant were husband and wife, was indispensable to the statement of a cause of action for divorce. (9 R. C. L. 417.) That allegation was denied in the first paragraph of the answer, and the denial imposed upon the plaintiff the burden of proving the fact by a preponderance of the evidence. (9 R. C. If. 433; 19 Corpus Juris, 124; section 8028, Rev. Codes.) In the Conley Case, above, we held further that “Under a general denial of the allegations of the complaint the defendant may introduce any evidence which goes to controvert the facts which the plaintiff is bound to establish to sustain his action.” It follows that, since it was necessary for plaintiff to allege and prove the existence of the marriage, evidence that the parties were never married was admissible under the denial in the answer, and that the affirmative allegation of nonmarriage does not constitute new , matter upon which defendant can be granted affirmative relief.

It is urged by counsel for respondent that the allegation [7] of nonmarriage as a ground for affirmative relief is warranted by the course of procedure at common law and is in the nature of a cross-bill setting forth the grounds of complaint in an action for jactitation of marriage. Anciently, at common law, where one person, not being married to another, pretended that a marriage existed between them and proclaimed it to others, the person against whom the claim was made, upon due proof, was entitled to a decree enjoining the offender from the false boasting. Cases of that char *334 acter arose occasionally in England, but they were peculiarly within the cognizance of the ecclesiastical courts. (Blackstone, 93). The action, however, fell into disrepute in 1776, when the House of Lords in the Duchess of King stone’s Case (20 How. St. Tr. 543) decided that the final decree was not conclusive of the fact of nonmarriage. In this jurisdiction the power to decree a divorce is purely statutory. (Rumping v. Rumping, 36 Mont. 39 , 12 Ann. Cas. 1090, 12 L. R. A. (n. s.) 1197, 91 Pac. 1057 .) Ample provision is apparently made by our Codes for the protection of the marital relation, and the significant fact that an action is authorized to establish marriage whenever either party to it denies the existence of the relationship (see. 3634, Rev. Codes), tends to negative the existence of the right which is now sought to be asserted. We think it can be said in all fairness that the right of action for jactitation of marriage has never been recognized as warranted by the common law as it was introduced in and adopted by this country. (19 Am. & Eng. Ency. of Law, 1217.)

The order overruling plaintiff’s motion to set aside the default is affirmed, as is the order denying a new trial. The cause is remanded to the district court, with directions to set aside the decree entered herein and in lieu thereof to render and have entered a judgment for dismissal or nonsuit and for defendant’s costs. Each party will pay his costs of these appeals.

Mr. Chief Justice Brantly and Associate Justices Hurly and Cooper concur. Mr. Justice Matthews, deeming himself disqualified, takes no part in the foregoing decision.