Scogna v. Scogna
Scogna v. Scogna
Opinion of the Court
delivered the opinion of the Court:
It was within the discretion of the court to entertain the motion to dismiss, notwithstanding answer had been filed. Moreover, after the first bill had been dismissed, and amendment filed, the cause was open to demurrer.
In our practice the motion to dismiss has been substituted for the former demurrer.
It was not error to dismiss the bill. Plaintiff took no exception and asked no additional leave to amend. The amendment
It appears from the bill that the sanity of the defendant was in question when she was permitted by the police authorities to leave the District, and that subsequently she was adjudicated insane in Chicago. If she was insane when she left the plaintiff’s house, she cannot be said to have an intention to desert him. She would not be responsible for such action.
It was incumbent upon the plaintiff to make it perfectly clear that she was not insane when she deserted him, and that it was not with his permission that she did so, in order to entitle him to a decree for separation.
Having failed to do this, his bill was properly dismissed.
The decree is affirmed with costs. Affirmed.
Reference
- Full Case Name
- SCOGNA v. SCOGNA
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- 1 case
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- Syllabus
- Divorce; Equity; Dismissal; Discretion. In a suit for divorce and custody of children by a husband charging his wife with desertion at a time when she was under police observa! ion here as to her sanity, and that she had subsequently been adjudged insane in another jurisdiction, after which she returned to this District, a motion by the defendant made after answer filed, to dismiss, was sustained, with leave to the plaintiff to amend, and he amended by inserting an averment in his bill that his wife had been permitted to leave the District by the police authorities; whereupon the court, on the defendant’s motion, dismissed the amended bill. On appeal by the plaintiff it was held that it was within the discretion of the court below to entertain the motion to dismiss, notwithstanding answer had been filed; that plaintiff having taken no exception and not having asked additional leave to amend, and the amendment not having materially changed the bill, and it not appearing that the defendant was sane at the time of the alleged desertion, or had not left the plaintiff with his permission, which it was incumbent upon the plaintiff to show, the bill was properly dismissed. Note.—On the efuestion of insanity as grounds for divorce, see notes in 34 L.K.A. 161, and 39 L.R.A. 264.