Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Christina Mary Carmichael or Ritchie v. Ross and Others [1874] ScotLR 11_325 (4 March 1874)
URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0325.html
Cite as: [1874] SLR 11_325, [1874] ScotLR 11_325

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 325↓

Court of Session Inner House First Division.

Wednesday, March 4. 1874.

[ Lord Mure, Ordinary.

11 SLR 325

Christina Mary Carmichael or Ritchie

v.

Ross and Others.

Subject_1Divorce
Subject_2Reclaiming Note
Subject_3Right of third parties to list themselves.
Facts:

A husband obtained decree of divorce in the Outer House against his wife, who reclaimed; before the reclaiming note came on for hearing the husband died and the case was dropped. The wife thereafter raised an action against her husband's trustees for payment of her conventional or legal provisions as widow,— held that the trustees were entitled to sist themselves in the action of divorce and to defend the decree obtained by the husband.

Headnote:

The pursuer of this action was married to George Ritchie in 1852, and on Feb. 28, 1872, Lord Ormidale pronounced decree against her in an action of divorce at the instance of her husband on the ground of adultery. A reclaiming note against this judgment was presented by Mrs Ritchie on March 20, 1872; her husband died on June 27 of the same year. The reclaiming note came before the First Division on July 18, 1872, and was dropped from the roll by order of the Court. On Jan. 23, 1873, Mrs Ritchie raised the present action against Sir David Ross and others, her husband's trustees and executors, for payment of £30 as an allowance for mournings, £150 per annum, being an annuity secured to her under her husband's trust-disposition, or the sum of £5000, or whatever other amount might be held to be the amount of her share of her husband's estate as his widow. The trustees resisted this claim on the ground that the pursuer's legal and conventional provisions were only payable in respect of her marriage, and that the marriage had been dissolved.

The Lord Ordinary pronounced the following interlocutors:—

“3 rd June 1873.—The Lord Ordinary having heard parties' procurators, and considered the closed record and productions, sists process for one month from this date, that the pursuer may take steps by action of transference or otherwise for having the decree of divorce founded upon in the defence recalled or set aside.

Note—Until the decree of divorce here founded on is recalled, or otherwise held to have become inoperative in consequence of the pursuer of the action having died before the reclaiming note was disposed of, it must, it is thought, be held to be a valid decree in dealing with the claim made in the present action. For although it seems to be settled that it is a good defence against decree of divorce
Page: 326↓
being pronounced that the pursuer has died in course of the process (Bell's Prin., sec. 1534; Lord Medwyn in Menzies, Nov. 21, 1835, 14 D., p. 47; Fergusson's Con. Law, p. 177; Lothian's Consistorial Practice, p. 168), the Lord Ordinary is not aware that it has ever been decided that where decree of divorce has been pronounced and is reclaimed against, but the pursuer dies before the reclaiming note is disposed of, the decree ipso facto falls as here contended for on the part of the pursuer, and must be disregarded in any proceedings on which it is afterwards founded upon; and, as it appears from the cases noted by Mr Fraser, vol. i., p. 658, that there is one case in which it has been held that parties having a patrimonial interest, such as the representatives of a husband who had died before decree of divorce had been actually pronounced, were allowed to carry on the process, or rather to institute a new process of declarator to the extent of maintaining a defence against a claim for aliment, the Lord Ordinary, as at present advised, is not prepared to hold that in this case the representatives of the husband may not be allowed to appear as parties respondents in the reclaiming note, and to the same extent oppose the recal of the decree; as this, however, is a question which, in the view the Lord Ordinary takes of it, cannot be satisfactorily dealt with except in or with reference to the process in which the decree was pronounced, he has sisted this process in order that the pursuer may take steps for having the question authoritatively disposed of.

22 d October 1873.—The Lord Ordinary having heard parties' procurators, and resumed consideration of the closed record and productions, in respect of the decree of divorce founded upon in defence, dismisses the action, and decerns: Finds no expenses due to or by either party.

Note.—As no steps have been taken in this case to have the reclaiming note against the decree of divorce pronounced by Lord Ormidale disposed of, it appears to the Lord Ordinary, for the reasons explained in the note to his interlocutor of the 3d of June 1873, that as matters stand at present he is not entitled to refuse to give effect to that decree to the extent which has now been done.”

The pursuer reclaimed.

Argued for her—The action of divorce is competent to the spouses only, the injury being a personal one to the aggrieved party. This is undoubtedly the case in regard to raising such an action, and it seems naturally to follow that no one who was incapable of raising the action can be capable of insisting in it after it has been raised, and in all the cases where third parties have been allowed to intervene it has been during the lifetime of both spouses. In the present case the decree of divorce is not final, it has not been extracted and is not extractable, and the marriage has been dissolved by the death of the husband. The status of the wife has been already fixed by the husband's death and nothing can now be done to alter it; and as the trustees could not have raised the action of divorce, so neither can they be allowed to insist in it.

Authorities— Walker v. Walker, 24th Jan. 1871, 9 Macph. 460, (effect of reclaiming note); Clement v. Sinclair, 4th March 1762; Menzies v. Stevenson, 21st Nov. 1835, F.C., 14 S. 47; Gardiner v. Macarthur, 16th May 1823, F.C., 2 S. 275, (new ed.); Greenhill v. Ferd, 7 th Feb. 1822, 1 S. 296, (new ed.) 275; 16th June 1824, 2 S. App. 435; Stair i. 4, 7 Ersk., i. 6, 43; Bell, 1534; Fergusson's Consist. Rep., p. 317 app.; Fergusson's Consist. Law, pp. 106, 177; Lothian, p. 168.

Argued for the trustees—It is not incompetent for persons other than the spouses to be parties to an action of divorce. Either the trustees must be sisted and allowed to support the Lord Ordinary's interlocutor on the ground of their jus quæsitum, or that judgment must stand; it cannot be got rid of by the mere presentation of a reclaiming note, nor can decree in absence be given. It is not here a question of pursuing an action of divorce; the trustees are simply defending a position gained by the husband, whom they represent.

At advising—

Judgment:

Lord President—My Lords, this is undoubtedly a question of some novelty, and that arises from the peculiar nature of a process of divorce—a kind of process which requires exceptionally cautious dealing. There is one rule which is of universal application, and it is this, that when one party to an action dies the action at once stops, and no further step can be taken in it until the void so created has been supplied. That can be done in ordinary cases in one of two ways, either by an action of transference, or, according to the more modern practice, by sisting the representatives of the deceased party; but until one or other of these is done the Court can proceed no further, and if nothing of the kind can be done then the case becomes immortal. This applies to the case of an action of divorce as much as to any other. But it is said that when the pursuer of such an action dies the suit necessarily comes to an end, because there is no one else who is entitled to carry it on, it being an action private to the two spouses; and to a certain limited extent that is quite true. No one else except the injured party is entitled to sue a process of divorce, and if decree of divorce is not given during the lifetime of the pursuer, but the marriage is dissolved by death, then no one else is entitled to raise such a process. But the position of the present case is peculiar, and that rule does not apply, for decree of divorce was pronounced in the lifetime of the husband, complete in all respects on the 28th February 1872 and it was not till 27th June of that year that the pursuer died. Meantime a reclaiming note was presented on 20th March and sent to the roll, but when it came on for advising we were informed that the husband was dead, and the case accordingly dropped. Now, the husband's representatives desire to sist themselves as respondents and that is opposed; but it appears to me that if they be not sisted it must necessarily follow that the case can go no further, for we cannot take up the reclaiming note without having these parties sisted, and the result will be that the Lord Ordinary's interlocutor can neither be recalled or altered; and if it be not recalled or altered it must just stand as it as. Mr Campbell Smith says that it has not been extracted, and that nothing else but an extracted decree would be received as evidence of divorce in any other action between the parties, but I fail to see how that applies, for when he goes to the trustees to demand payment he does so on the footing that she is the widow of her late husband. The trustees’ answer to him would be that she was divorced, and the only way to decide that is to go on with the reclaiming note. That is what Lord Mure has done, and I think he

Page: 327↓

was quite right. It is in this lady's power to call parties into the field by an action of transference, supposing that action to be a competent one. The trustees do not come here as pursuers in an action of divorce, they simply come to defend a judgment already obtained. If her reclaiming note be refused, the result will be that she has been divorced since the date of the Lord Ordinary's interlocutor, and so the position of the trustees is that of defending a decree of divorce already pronounced. Suppose that, instead of a reclaiming note this had been an action of reduction of a decree of divorce on the ground of some inherent nullity. The action would have to be directed against somebody, and the trustees would necessarily be called as defenders. The present proceeding is quite analogous to that; they are merely defending that which the husband gained during his own life, and I can see no reason why they should not occupy that position.

The other Judges concurred.

The Court refused the reclaiming note.

Counsel:

Counsel for Mrs Ritchie— J. Campbell Smith and A. J. Young. Agent— T. Lawson, S.S.C.

Counsel for Ritchie's Trustees— Balfour. Agent— John Galletly, S.S.C.
1874