Hepburn v. Hepburn

The circumstance that defendant, at the time of the marriage of the parties in September, 1864, had been married in April of the same year to William H. Baldwin, and that she then -claimed to have been legally divorced from him, is conceded. Plaintiff had then all the means of ascertaining the truth of the fact that he has had at any time since, and his allegation that it is only within a year past that he has made search and ascertained the contrary, without any but an indefinite allegation in that respect as to search for such a decree and inability to find it after thirteen years marital relation and birth of five children, presents a case of most attenuated equity. His former action for a divorce and the present one to annul the marriage are “ idem generis,” and each invoked the equitable powers of the court to the same end, a release of the plaintiff from his marital obligation. The justice and propriety of the application in such a • *477case is clearly made manifest on the affidavits and points presented and it should be granted. While making this disposition of the motion I would be wanting in a sense of duty if I failed to' commend the diligence and professional acumen of Hr. Langbein, the defendant’s counsel, who, in his learned and elaborate brief upon the question when such a stay should be granted until payment of costs in prior litigations, presents a fair essay on the subject in all its phases. The aid he has thus extended to the court presents a glaring contrast to the great mass of practitioners appearing before it who, either through indifference to the cause of their clients, ignorance to the principles involved, or, on the assumption that the “ judge knows all the law,” cast upon him a burden of elaborate research,mot only upon mooted and contested questions but upon such as rest upon the gravest complications arising as well upon the facts as upon the weighing and harmonizing of conflicting decisions.

Motion granted, with ten dollars costs.