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Susannah Owens v. William Owens.
COURT OF APPEALS OF KENTUCKY
3 Ky. 162; 1807 Ky. LEXIS 38; 1 Hard. 162
September, 1807, Decided
PRIOR HISTORY: [**1] This was a suit in chancery, brought originally by Susannah Owens, wife of William Owens, against him in the court of quarter sessions for Wayne county, under the act of assembly concerning alimony. (1) The bill charges that he treated her in a cruel, inhuman and barbarous manner, and sets forth the particular cases of ill-treatment complained of. The defendant filed his answer, by which he denies some of the particular charges of ill-treatment, and avoids others by alleging provocations given by his wife, which answer was regularly replied to by the complainant.
(1) Acts of 1800, ch. 10, p. 22.
Upon a petition for a change of venue by the defendant, the cause was removed into the Adair circuit court.
The petition stated that he had an action depending, etc., without stating what kind of an action; and alleged, as a cause for a change of venue, "that owing to the undue influence of his adversary, and her connections over the minds of the populace, and the particular odium that attends his cause, though legal, he suspects that he can not have justice," etc. The affidavit was "that the facts stated in the petition, as far as his own knowledge extends, are true; [**2] and what he has from information, he believes to be true."
After both parties had taken their depositions, the cause was tried at the ___ term of the Adair circuit court in the year 1804.
A jury was impaneled and sworn on this trial, who returned a verdict, "That the defendant did cruelly and inhumanly abuse the complainant during their cohabitation, which occasioned their separation; and that the complainant did strike and assault the defendant, and greatly provoke him."
This verdict the court, on the motion of the defendant, set aside, without expressing on the record or showing in any way any cause for so doing. After which, leave was given the defendant to amend his answer; whereupon, at the same term, he filed his amended answer, therein charging her with the commission of adultery during the coverture.
To this amended answer no replication was put in, and the cause was continued until the September term, 1804, at which term another jury was impaneled in the cause, who returned a verdict "that the defendant did not cruelly, barbarously, and inhumanly treat the complainant," whereupon, the court dismissed the complainant's bill. To reverse that decree, this [**3] writ of error was prosecuted, and the plaintiff in error filed the following errors, to-wit:
First. That the case being in chancery does not come within the act authorizing a change of venue, according to the law in such case made and provided. The statement in the petition does not warrant a change; moreover, the affidavit thereto is not sufficiently direct and positive, therefore, the change from Wayne to Adair circuit court was error.
Second. The trial being in chancery, the court erred in setting aside the verdict or report of the jury without cause shown.
Third. The second trial and hearing of the cause was erroneously had, when the cause was not at issue or in a state for trial or hearing.
Fourth. On the whole case, on the merits, the court erred in dismissing the bill with costs, etc., when the decree should have been for the complainant.
COUNSEL: ALLEN for plaintiff.--Since the assignment of these errors, the first clause of the first error assigned has been overruled in a cause, Woods v. Fayette Circuit Court, on a mandamus. (1) I will not argue that point, nor abandon it; the court can reconsider [**4] it.
(1) Spring term, 1806.
The statute authorizing a change of venue in this country is new. (2) But it may, with propriety, be assimilated to the English statute authorizing a defendant to be held to bail by affidavit. Sellon's Practice, 111, 112, 113, shows that the English statute does not require any particular form of affidavit. But the decisions under that statute require that the affidavit should be as positive as the nature of the cause will admit of. It will not be sufficient by referring to another matter. It must be so certain that if untrue, perjury could be assigned on it. The same book, 114, 115, shows also that the same strictness is required in the description of the action. Testing this case, then, by those rules, it will be found to be deficient in every respect. To have complied with the true spirit of the statute, the party, in his petition, should have stated the kind of action. He should have stated positively that there was an undue influence, and his apprehension that he would be prevented from having a fair trial by that undue influence. Or it should have stated what his defense was, and that an odium was attached to that defense. The affidavit [**5] should have been positive in these facts. If this construction does not prevail, the discretion which this statute intended to give the judge is destroyed, and the party may remove his cause at pleasure.
2 Acts of 1803, ch. 77, p. 115.
In support of the second error assigned, I rely upon the case of McClenahan v. Respass, etc., (3) to show that when a court sets aside a report of commissioners, under the occupying claimant law, which is good on its face, they should assign a sufficient cause for so doing, or it is error. So, in chancery causes, all the proceedings and evidence are or ought to be of record; and if a step taken in them, or a finding of a jury be regular and authorized by what is of record, it is error to set it aside, unless a good reason therefor be entered of record. The evidence in this cause will be found to warrant the first verdict returned in this suit. If the court erred upon this point, all the subsequent proceedings are a nullity. They can not make the complainant's case the worse. A suit determined by this court, McNeely v. Oldham's Ex'rs, (4) is full in point as to this position.
(3) Pr. Dec 275
(4) June, 1806.
JUDGES: EDWARDS, Ch. J. [**6] , JUDGE LOGAN.
OPINION BY: EDWARDS; LOGAN
OPINION
[*164] EDWARDS, Ch. J.--I doubt whether the jury should not have found the several acts of maltreatment by the husband, and left the court to draw the conclusion whether it amounted to cruel treatment, etc.
JUDGE LOGAN.--Another branch of this law says that open and avowed adultery is a cause for decreeing alimony. Would the [*165] court have the particular acts found in that instance? I think not. And there should not be a difference in the practice under the two branches of this law.
ALLEN proceeded.--The jury are, under this law, to determine whether the husband has acted so as to come within any one branch of it; and the court are to pronounce the proper decree, if he has. But if the chief justice's doubts are well founded, both verdicts are erroneous and the decree must be reversed.
EMMERSON for the defendant.--The statute authorizing a change of venue is a remedial one, and should be liberally construed. The English statute, concerning bail, deservedly received a strict construction, because its provisions went to deprive individuals of their liberty. Here, after a change of venue, there is still a fair trial, and no penalty [**7] imposed on either party. The decisions on the English statute should, therefore, be no guide in the interpretation of the one under consideration.
The second error assigned can not be maintained.
The chancellor, when he presides over the trial of an issue made up in a cause depending before him, has the same power to order a new trial that the common law judge has; and as much credit is due to his order awarding a new trial, as to the order of a common law judge--that is, that it was done on sufficient ground, unless the contrary be shown by a bill of exceptions. There is no foundation for the distinction taken by the opposite counsel between the courts of common law and of chancery.
The third error is equally untenable. If the suit was brought to trial too soon, the exception should have been taken below before trial. It not having been taken, it is now too late.
THE COURT delivered an opinion in writing which, after a recital of the case, proceeded:
On the first objection contained in the first assignment of error it will be sufficient to remark, that it has been heretofore decided by this court (1) that a chancery cause is within the provisions of the law authorizing a change [**8] of venue; and the court can not now discern any reason of sufficient weight to impugn the decision. (2)
(1) Woods v. Fayette Circuit Court, on a mandamus, spring term, 1806.
(2) Same point decided in the case of Woods v. Patrick and wife, spring term, 1808.
The objections to the petition and affidavit thereto have produced considerable difficulty, but the court is strongly impressed that the objections can not now be regarded. After the change of [*166] venue to the Adair circuit court, the complainant went on twice to trial in that court without making any objection to the jurisdiction. After this, it seems to this court the objection comes too late, and that it would be doing great injustice to turn the parties round on an objection of this kind, after incurring so much expense and trouble, which might have been avoided by making the objection in proper time. The objections to the petition and affidavit are, in their nature and reason of the thing, like a plea to the jurisdiction [**9] of the circuit court of Adair, and the complainant ought to have taken advantage of them at her first appearance in that court, by moving the court of Adair to remove the cause to Wayne, and having failed to do so, she has admitted the jurisdiction of the court.
It is a general rule, or principle, of the common law, that every order or proceeding of a judge, made at his chambers, out of court, is subject to be judged of, corrected, and, if illegal, controlled by the court into which such order, or proceeding, or the cause in which it is made, is returned. And although the act of assembly is silent as to the suit illegally removed, the defect is helped by this rule of the common law, which comes in aid of the statue, and clearly conferred on the Adair circuit court the power of deciding, on the face of the proceedings, whether the cause had been legally removed into that court or not. Many examples might be given establishing the propriety and necessity of this power, but one shall suffice. Suppose the messenger employed by the clerk, who is bound to transmit the papers, should, through mistake, carry the papers to a different court from that to which the venue was changed, and the [**10] cause should be there docketed, can it be doubted but that that court, upon application, would refuse to try the cause, and would remand it, or direct it to be sent to the proper court.
It would seem a very extraordinary exercise of the appellate jurisdiction of this court to reverse a judgment, or decree, of the circuit courts for irregularity in an order made in the progress of the cause by the judge, out of court, which might have been corrected in that court, but which was not corrected, because the party chose not to apply for redress. The exercise of such a power by this court would, in the general, be highly inconvenient and mischievous.
From this view of the subject, it will not be necessary for the court to determine whether the objections to the petition and affidavit are well founded or not.
[*167] This court is of opinion the circuit court erred, for the reasons alleged in the second and fourth assignments of error.
This being a chancery cause, in which everything appears in the record, the setting aside the first finding of the jury is clearly distinguishable from the granting a new trial at law. There, it is impossible for this court to see whether the [**11] verdict given was authorized by the evidence submitted to the jury or not, or whether it was consistent with, or contrary to, the justice of the case. And as the judge has a controlling power over the jury in granting a new trial, for attaining the ends of justice, this court, being wholly uninformed on the subject, will presume he has properly exercised his power, unless the contrary appears. But here the whole evidence which was before the jury appears in the record, so as to enable this court to determine whether the finding of the jury was supported by the proof and the justice of the case. Upon the merits of the question we have all the rights he had, and, therefore, the necessity of the case does not require us to presume so much in his power.
This court, on a mature consideration of the depositions filed in the cause, are clearly of opinion that the first finding of the jury was fully supported by the proofs in the cause, and perfectly consistent with the justice of the case.
This, then, being a chancery cause, in which everything ought, and does usually, appear in the record, it became the duty of the judge, when setting aside such a verdict, to show, of record, the cause [**12] for setting it aside. Not having done this, the proceedings must be deemed erroneous, and, consequently, the second trial, and the decree of dismission subsequent thereto, must be reversed and set aside.
It will be unnecessary for this court now to give any opinion on the third error assigned, as every proceeding in the cause, subsequent to the first finding of the jury, is deemed irregular and erroneous.
Therefore, it is considered by the court, that the decree aforesaid be reversed, with costs; that the cause be remanded to the court from whence it came, with directions to said court to enter up a decree for the complainant on the first verdict, unless the defendant shall show some sufficient cause, to be stated on the record by the court, for setting it aside.
