HOFFMAN v. HOFFMAN

Appeal from circuit court, Bullitt county. "Not to be officially reported."
Action by J. A. Hoffman against Myra B. Hoffman for a new trial. Judgment for defendant, and plaintiff appeals. Affirmed.

Chapeze & Halstead, for appellant. J. F. Combs, for appellee.

HOBSON, J. On March 11, 1895, appellant filed his petition in equity in the Bullitt circuit court asking a divorce from the appellee, his wife, to whom he had been married on the 9th of January, 1895, in Jeffersonville, Ind. The ground of divorce alleged was that the marriage was void, because the wife then had another husband living. To this the wife answered, in effect, that her first husband had abandoned her many years before, and was supposed to be dead, but that before she married the second time she had applied for a divorce; that the appellant well knew all the facts, and assisted her in the application for the divorce; that the divorce proceedings were pending at the time of her marriage; and that a judgment of divorce was rendered three days after the marriage. She denied that, under the laws of Indiana, her marriage was vold, and alleged that her first husband was in fact dead when it took place. At the March term, 1896, when very little had been done in the action, the following order was entered: "This day came the defendant, by counsel, and moved the court to dismiss this cause, which motion, by agreement of plaintiff, is sustained, and this cause is dismissed, at the cost of the plaintiff." Thereafter, on August 21, 1896, appellant filed this suit for a new trial, alleging that the above order was made without his knowledge or consent, and was not authorized by him. He alleged that he did not know of it until after the court adjourned, and that it was a surprise to him, which ordinary prudence could not have guarded against. The allegations of the petition were denied by appellee, evidence was taken, and on final hearing the court dismissed the petition.

The evidence showed that, in the fall of 1895, perhaps in the month of November, appellee was delivered of a child, and that after this, in February, 1896, she returned to her husband's home with the child, and they lived there together, apparently as husband and wife, from that time until the March term of the court. When that term approached, appellant said to his attorney not to call the case up. During the term appellee's counsel moved to dismiss the case, stating that the parties were living together as husband and wife, and, appellant's counsel having the same information, the order was made as above 'quoted, but without any express consent on the part of counsel, so far as the proof shows. Excluding the depositions that were clearly incompetent, the testimony abundantly sustained the action of the court in dismissing this petition, and the order, being proper when made, should not be set aside afterwards, by reason of a change of circumstances, if such has taken place. If the parties were living together as husband and wife at that time, the court ought to have dismissed the petition, and, having done what was right at the time, there was no reason for granting a new trial because appellant did not consent to the order. We do not regard the order as dismissing the case settled. The motion was to dismiss the case, because the parties were living together, and the consent evidently referred only to a dismissal of the cause without prejudice; for that was all that was naturally included in the motion. If appellant still desires to have the marriage annulled, he can bring a new suit for this purpose. Judgment affirmed.

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