Evening star. [volume] (Washington, D.C.) 1854-1972, 1902-04-02
SW WEEPING DECISION
JUSTICE HAGNER'S RULING IN
MATTER OF DIVORCES.
Petition Must Be for Absolute Sep
aration-Court Can Take Cogniz-
ance of No Other Plea.


today made a ruling believed to be of I'M
usual Importance as regards the matter Of
divorce in the District of Columbia. In ef-
feet, Justice Hsgner. holds that the court
has no jurisdiction under the new code to
consider petitions for divorce "a mensa ct
thoro'-a limited divorce or divorce from
bed and board. All petitions for divorce,
says Justice Hagner, must be for from
the bond of marriage" and must allege
adultery, for otherwise they cannot be con-
sidered. The court has power to grant
limited divorce, in the opinion of Justice
Hagner, but only in passing upon applica-
tions for absolute divorce, and in cases
where the allegation of infidelity has not
been fully proved. but other circumstances,
cruelty for instance, warrant a separation
Of the parties.
Another important point Of the decision
of Justice Hagner is that the court has no
jurisdiction to allow alimony and counsel
fees pendente lite, except in proceedings for
absolute divorce
1t is further held that the court has juris-
diction in proceedings for maintenance, but
that this jurisdiction cannot be exercised
in connection with petition for divorce.
The opinion of Justice Hagner was rem
dered in the of Annie Poole against
John H. Poole A petition for divorce from
bed and board was filed the 18th of last
month by Mrs. Poole. Cruelty was alleged.
A few days ago the petitioner asked an al
lowance of alimony, pendente lite and for
counsel fees. The application was refused.
Text of the Opinion.
The opinion Of Justice Hagner follows:
This bill was filed on the 18th Of March,
1902 alleging cruelty on the part of the
defendant. endangering the life and health
of the petitioner, and that he deserted her
in December, 1897; praying for divorce,
"a mensa ct thoro on the ground Of cruelty
and desertton, and that an order should be
passed granting her $50 a month as ali
mony pendente lite and suit money, and
the further sum of s100 counsel fees.
''On the same day the defendant was re-
turned summoned
No further proceedings We're had in the
cause until a petition was filed on behalf OF
the complainant. specifically applying for
order for alimony pendente lite and
counsel fees.
Basis of Opinion.
Il passed an order refusing the prayer Of
the petition upon these grounds:
Il. AS to the prayer for divorce a mensa
ct thoro, because the court has no juris-
dIction to grant the application under the
existing provisions of the divorce law as
contained in the code Section 966 declares
there shall be divorce from the bond
of marriage except for adultery, but that
legal separation from bed and board may
be granted Tor drunkenness, cruelty or de-
sertion.' Section 93S declares that where
a divorce from the bond of marriage is
prayed the court shall have authority to
decree a divorce from bed and board II
the causes proved be sufficient to entitle
the party to the relief asked
But in this cause no divorce from the
bond of matrimony is prayed, and,
construe the law, the presence of such a
prayer is essential to the passing Of a de-
for divorce mensa ct thoro. Besides.
there is no explanation in the section as to
the character or duration of the. three
causes which are spoken of in section 3o6,
as providing ground for legal separation.
how long the drunkenness or deSertion may
have existed is left unexplained by the law.
AS the provisions in the section are only
prospective and the divorce provisions of
the Revised Statutes are repealed, there ls
no law in existence to meet such a case.
Matter Of Alimony.
''2d. With respect to the application for
almony pendente lite, section 975 expressly
limits the power of the court to decree,
cept during the tendency of suit for d.
for divorce from the bond of marriage-or
to a case where application is made to de-.
clare a marriage void. This cause comes
unuer neither of those conditions.
The provision to maintenance of wife
in section $50 stands upon a different foot
ing, and must be pursued in an entirely diff
ferent form of proceeding.
Having no jurisdiction to grant the re-
lief prayed in the petition in either form,
the prayer therein is refused
Attorney w. Preston Williamson, repre-
senting Mrs. Poole, has announced that he
will appeal from the ruling of Justice Hag-
ner to the Court of Appeals.