Malcolm v. Malcolm

— The peculiar method of conducting this case requires some correction.

Plaintiff filed her complaint in divorce on September 3, 1948, praying for an absolute divorce on the one ground of indignities to the person.

On February 6, 1950, plaintiff filed a petition to amend the complaint by adding, as an additional ground for divorce, wilful and malicious desertion. On this petition, a rule was granted returnable to March 6, 1949. Since the date of the order was February 6, 1950, it is obvious that the year for the return day must have been 1950. Endorsed on this peti*458tion is the following: “And now February 20, 1950 a copy of the within petition for an amended complaint received and issuance of the rule waived. D. M. Anderson, Atty. for defendant.” No answer to the rule was filed and no further steps regarding an amendment were taken.

The master recommends a decree of divorce on the one ground of desertion, that being the ground alleged in the incomplete proceeding to amend. The master could not have recommended a decree on any other ground because plaintiff abandoned at the hearing before the master the charge of indignities and offered no testimony on that charge.

It is required in divorce proceedings that any decree of divorce entered must be for the very cause alleged in the complaint, and under this record as it now stands we cannot grant a decree on the ground of desertion for it is not a reason set forth in the complaint and the amendment of the complaint has not yet been allowed by the court.

Since after 20 days following the waiver of the rule on February 20, 1950, the rule could have been made absolute and leave to amend been secured, and for the purpose of avoiding circuity of action this can now be done as of the proper time, and since the proceeding for a divorce on the ground of desertion appears to be meritorious, we will now do what should have been done at that time, and as to the proceedings after that date, treat them as though they had followed the decree making the rule to amend absolute.

And now, April 19, 1951, it is ordered and decreed that the rule issued February 6, 1950, and returnable March 6, 1950, the issuance of which rule was waived by counsel for defendant on February 20, 1950, be made absolute in default of an answer as of March 14, 1950, and leave to amend the complaint is hereby granted.as of that date.