Scottish Court of Session Decisions

Mrs May Philips or Whyte, Aberdeen, raised an action of separation and aliment against her husband George Whyte, Leslie Terrace, Aberdeen, the summons in which was personally served upon the defender, who did not enter appearance or defend the action.

In the proceedings an order for proof was pronounced and notice thereof was sent to the defender by registered letter.

The defender was not represented at the proof, and the Lord Ordinary after hearing the evidence granted decree of separation and decerned against the defender for a sum of aliment for herself and her children.

The defender lodged a reclaiming-note and tendered defences, which the Court allowed to be received.

On the case appearing in the Summar Roll, counsel for the pursuer objected to the competency of the reclaiming-note, and argued that the decree obtained by the pursuer was a decree in absence, recal of which by means of a reclaiming-note was by sec. 23 of the Court of Session Act 1868 incompetent—Fraser on Husband and Wife, p. 1238. The proper course for the defender to follow if he was in earnest was to bring a reduction of the decree— Stewart v. Stewart, Feb. 27, 1863, 1 Macph. 449. It was a hardship that the defender, who was well aware of what was going on, should be allowed to lie by, and after decree had been pronounced to have the whole proceedings commenced de novo.

The defender argued that he was out of Scotland when the proceedings were going on, and that he was unable from poverty to defend the action at the previous stage of the proceedings.

The Court remitted to the Lord Ordinary to repone the defender upon such terms as to his Lordship should seem fit.