DIVORCE.

[Lucas Circuit Court,

January 24, 1896.]

Scribner, Haynes and King, JJ.

#### Margaret Clowry v. Thomas Clowry.

1. Insanity or Either Party Renders Court Powerless to Adjudge Divorce.

Where it appears in a divorce proceeding, that one of the parties to the suit, especially the defendant, is insane, the power of the court to adjudge a divorce is entirely gone.

2. Action or Court in Dismissing such Suit Subject to Review is a Final Judgment.

The action of the court of common pleas in dismissing a petition for divorce on the ground that the defendant is an insane person is subject to review upon appeal or error. Such action is, in one sense, a final hearing of the case, though not a final hearing of the ground alleged for divorce.

Error to the Court of Common Pleas of Lucas county.

Scribner, J.

This is a petition in error, by which the plaintiff in error seeks to reverse the judgment of the court of common pleas in a case brought in that court for divorce, the court of common pleas, upon the showing made in the record, having refused to proceed with the consideration of the case.

It appears by the record that the plaintiff filed her petition for divorce, setting out the marriage of the parties in the year 1879, and that while the plaintiff in error was conducting herself in a proper and dutiful manner, the defendant had been guilty of extreme' cruelty towards her; and setting out also that there were four children born of the marriage still living, which she was compelled to maintain and support. She also alleges gross negligence on the part of the husband. Then she makes this averment:

> *653“ Said plaintiff further says that said defendant is now, and has been, since September, 1891, an inmate of the Toledo Asylum for the insane. Wherefore said plaintiff asks that a guardian *ad litem*for said defendant may be appointed, and that, on the final hearing thereof, she may be adjudged to be divorced from said defendant, and to have the care, custody and control of said minor children.”

It appears from the record that a summons was issued upon this petition for divorce in due form, and delivered to the sheriff, who made return that he “ received this writ on June 1, 1895, and pursuant to its command summoned on June 5,1895, the within named defendant,Thomas Clowry. ” The record of the proceedings in the case contains the following transcript from the journal of the court:

> “On the second day of April, A. D., 1895, among other proceedings had by and before said court on the first day of July, A. D., 1895, being the seventy-seventh day of said term, as appears by its journal of that day, were the following, viz:

> “Margaret B. Clowrey v. Thomas Clowrey. This day came the plaintiff by her attorney and made application to the court for the appointment of a guardian *ad litem*for the defendant, who is insane; the court, on consideration, thereof, overrule the said motion, and said petition is dismissed at plaintiff’s costs, for the reason that it shows the defendant to be now insane. To which ruling and order of the court plaintiff excepts.”

The plaintiff filed her petition in error, and assigned as grounds of error:

> “1. Said court erred in rendering judgment dismissing the petition of said plaintiff, because and on the ground that the defendant was then an insane person, and as such said action could not be against him.

> “2. Said court erred in overruling the motion of said plaintiff for the appointment of a guardian *ad litem*of said defendant, an insane person; and for other errors apparent of record.”

Upon the matter so assigned, appearing upon the record, the plaintiff asks this court to reverse the judgment of the court of common pleas, and remand the case for further proceedings in the divorce proceedings.

The question presented upon this record is, first, whether or not this court has jurisdiction to consider the action of the court of, common pleas in dismissing the petition for divorce, and whether by a proceeding in error this court may review and revise the action of the court of common pleas; in the second place, whether or not the court of common pleas had any jurisdiction and power to proceed in a divorce proceeding against an insane person. It might be said that the court of common pleas was perhaps a little bit hasty in declaring as it did in the order of dismissal that it appeared by the record in the case that the husband was insane. The court declares in its entry in dismissing the petition that it overruled the motion for the appointment of a guardian, and that the petition “ is dismissed at plaintiff’s costs, for the reason that it shows the defendant to be now insane.” If we go to the petition of the plaintiff in the case, we find the allegation to be this, and the only allegation upon the subject, as I now remember: “Plaintiff further says that said defendant is now, and has been since September, 1891, an inmate of the Toledo Asylum for the Insane.” Well, if we are to take it for granted, if we are to assume, that every person who is an inmate of the Toledo Asylum for Insane, is insane, there might be cause for divorcing a good many individuals, perhaps, who might be found domiciled there. It is *654not an allegation that the defendant is insane, but nevertheless it was undoubtedly meant for that. But proceeding upon the assumption tha t it is equivalent to an allegation that the defendant is insane, and as. such is confined to an insane asylum, how stands the case ?

In the first placej insanity is not a ground of divorce under the statutes of Ohio. Section 5689 provides for what causes the court of common pleas may grant a divorce, and we do not find the insanity of either party provided as one of the grounds for divorce; that the insanity of either the husband or of the wife shall entitle either of the parties to the marriage relation to divorce. And with perhaps one exception, the only causes for which divorce may be granted are enumerated in that statute. There is this held by the Supreme Court in Waymire, Guardian, v. Jetmore, 22 O. S., 271: That the court of common pleas, in the exercise of its chancery powers, may declare a pretended marriage null and void upon grounds which touch the capacity of the parties to enter into the contract; but no such power may be exercised by the court of .common pleas under its chancery or equity powers, by way of annulling a marriage or divorcing the parties, who have already entered into a valid contract of marriage. The court stale here in the syllabus of this case :

> ‘T. The marriage contract of one affected with congenital imbecility of mind to a degree rendering him incapable of consent, is void *ab initio.*

> *“2.*A court of chancery, in the exercise of its ordinary powers, will entertain jurisdiction at the suit of the imbecile’s guardian, to declare such marriage a nullity.”

Not to avoid a marriage and divorce the parties, but to determine and adjudge that a ceremony purported and intended to be a marriage contract was not a marriage contract, because the parties did not possess the mental capacity to enter into such a contract.. And the same doctrine was held by the district court of Hamilton county in the case of Myer v. Myer, 7 Dec. R., 627, where the court, passing upon a question of like character, reached the same conclusion; that it was competent for a court of equity to determine whether or not parties were competent to enter into the marriage- relation, and whether what, purported to be a marriage contract was in fact such a contract; and if the parties did not possess sufficient mental capacity to enter into the marriage relation, to-declare or adjudge what purported to be a marriage contract between them to be void.

In this proceeding there is no power conferred by statute, as we understand it, upon the court of common pleas, to pronounce a decree of divorce upon the ground that one of the parties has become insane since the marriage contract was entered into ; and in addition to’that, it seems to-us that where it appears, if it does appear in a divorce proceeding, that one of the parties to the proceeding, especially the defendant, is insane, that the power and authority of the court to adjudge a divorce is entirely gone. No such power is possessed or may be exercised by the court of common pleas, under its jurisdiction conferred by the statute, to grant a divorce. It would be an assumption of jurisdiction and authority Upon the part of the court, in such a case as that, to proceed.

We do not find any method in the statute for protecting an insane-party proceeded against in a proceeding for divorce. We find in the general statutes — section 5000 and following — that a guardian may be appointed in ordinary proceedings or actions at law instituted in the-courts of common pleas, to protect the interests of an insane person who-*655is proceeded against in that court, but no such provision is made in respect to an insane person who is proceeded against íor a divorce.

Another thing: this proceeding is brought before us upon petition in error. We doubt very much whether such a proceeding as this may be brought into the circuit court upon error. It is a proceeding for divorce. There is no appeal allowed in proceedings for divorce. There may be an appeal taken where a proceeding for alimony is carried ou, but not where there is a proceeding for a divorce. A proceeding in error is in the nature of an appeal proceeding, although it is not by the usual method of appeal, by bond taken, which vacates the judgment of the court below.

We find collected in a note some few of the decisions of the Supreme Court bearing upon this subject of appeal, to which I shall call attention. Section 5706, Rev. Stat., is as follows:

> “No appeal shall be allowed from any judgment or order of the court of common pleas under this chapter, except from an order dismissing the petition without final hearing, or fro.m a final order or judgment granting or refusing alimony, or incases under section 5705; when judgment is rendered for both divorce and alimony, the appeal shall apply only to so much of the judgment as relates to the alimony; and when an appeal is taken by the wife, she shall not be required to give bond.”

In a note added here by the editor, it is said, “Appeal lies in cases of divorce if the petition is dismissed without hearing. Myer v. Myer, *supra.*It did not lie in 1846, in Laughery v. Laughery, 15 O., 404; nor in 1856, Tappan v. Tappan, 16 O. S., 64; nor in 1859, in Price v. Price, 10 O. S., 316. In Tappan v. Tappan, *supra,*we find it said in the syllabus:

> ‘‘The district court has no jurisdiction to review, on petition in error, the proceedings of the court oí common pleas, in cases of divorce and alimony. The decree of the court of common pleas in such a case, is not, by the law of this state, subject to judicial revision.”

Now, here the question arises as to how far, under the statute permitting appeals, the words “petition is dismissed without final hearing” applies. There was no final hearing here upon the merits of the controversy. That is true enough; but the court adjudged that because the defendant was insane there could be no divorce, and for that reason dismissed the petition. That is in substance the result of the ruling of the court. That was equivalent to a holding by the court of common pleas that there could be no divorce where there was insanity of the defendant in the proceeding, because that is the ground upon which the petition for divorce is dismissed — because it so appears by the application of the plaintiff that the defendant is insane. And because the defendant is insane, there can be no decree for divorce in the case. So that there is, in one sense of the term, strictly, a decree upon final hearing, though not upon final hearing of the ground alleged for divorce, but on the final hearing of the merits of the case; because the judgment of the court here is that upon the facts stated in the petition of the plaintiff, there can be no divorce decreed in the case, and the petition must be dismissed.

The question is a very interesting one; but it occurs to us, upon the facts disclosed in this record that the action of the court of common pleas-cannot be reviewed here by this court — we cannot undertake to determine whether or not the court of common pleas erred, because we cannot entertain jurisdiction of this petition in error, to pass upon the case.

The petition in error must therefore be dismissed, and i* is so-ordered.