Judges: PER CURIAM.
Attorneys: Evan Evans, for Appellant.
McKinney and Edwards and J.V. Walton, for Appellee.
Filed: Apr. 27, 1937
Latest Update: Mar. 02, 2020
Summary: In this cause Mr. Chief Justice ELLIS, Mr. Justice BROWN and M. Justice DAVIS are of the opinion that the decree of the Circuit Court should be affirmed; while Mr. Justice WHITFIELD, Mr. Justice TERRELL and Mr. Justice BUFORD are of the opinion that the said decree of the Circuit Court should be reversed and the cause remanded with directions that the Chancellor enter an order dismissing the Bill of Complaint. When the members of the Supreme Court, sitting six members in a body and after full co
Summary: In this cause Mr. Chief Justice ELLIS, Mr. Justice BROWN and M. Justice DAVIS are of the opinion that the decree of the Circuit Court should be affirmed; while Mr. Justice WHITFIELD, Mr. Justice TERRELL and Mr. Justice BUFORD are of the opinion that the said decree of the Circuit Court should be reversed and the cause remanded with directions that the Chancellor enter an order dismissing the Bill of Complaint. When the members of the Supreme Court, sitting six members in a body and after full con..
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I think the decree of divorce rendered on June 8, 1936, from which the appeal in this case was taken, should be affirmed.
The case was tried by the Chancellor on bill of complaint, answer and testimony taken ore tunnus before the court. The ground alleged for the divorce was a statutory one of desertion and it was alleged that the desertion began in August, 1932. The bill was filed, April 3, 1935, but in the meantime Mrs. Baptist procured a decree for separate maintenance and attorneys' fees on November 28, 1932, on her bill filed in September, 1932. In her answer to the bill of complaint in the instant case she avers that the decree in the proceeding begun by her "validated and legalized the separation" of herself and husband, on which separation Baptist's bill for divorce was founded.
That averment is not well founded for the reason that there can be no decree in this State a mensa et thoro, but must be avinculo matrimonii.
An examination of the record in this case satisfies me that the decree rendered by the Chancellor in the instant case, divorcing the complainant Baptist from his wife, finds ample support in the evidence.
The order of the court reversing the decree and allowing the complainant in the divorce suit to amend his bill by alleging another and wholly different ground for divorce as a basis for a decree of divorce is contrary to the doctrine announced in Barry v. Willard, 117 Fla. 236, 157 South. Rep. 669, in which it was said that to set up in an amended bill a cause of action wholly inconsistent with the set-up in the original bill is not allowable. The amendment proposed to be allowed would be in effect the institution of a wholly different suit; at least, wholly different grounds for divorce, which is not consistent with the rule announced above. See Guggenheimer v. Davidson,62 Fla. 490, 56 South. Rep. 801.
Therefore I adhere to the views entertained by me in the decision of this Court filed on April 27, 1937, in which by a divided court the decree of divorce was affirmed.
ON PETITION FOR REHEARING
