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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Dombrowizky v. Dombrowizky [1895] ScotLR 32_288 (23 February 1895)
URL: http://www.bailii.org/scot/cases/ScotCS/1895/32SLR0288.html
Cite as: [1895] SLR 32_288, [1895] ScotLR 32_288
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SCOTTISH_SLR_Court_of_Session
Page: 288↓
Court of Session Outer House First Division.
Lord Kincairney, Ordinary.
v.
Facts:
The defender in an action of divorce was allowed to put in defences after the evidence for the pursuer had been led. Thereafter the Lord Ordinary repelled the defences, and granted decree of divorce. The defender having reclaimed, the pursuer objected to the competency of the reclaiming-note on the ground that a copy of the record had not been appended thereto in terms of the Act of Sederunt of 11th July 1828, section 77.
The Court repelled the objection on the ground that the record had never been closed, and that the section only applied to cases in which there was a closed record.
On 10th November 1894 Dina Dombrowizky, 23 St Mary Street, Edinburgh, raised an action of divorce against her husband Joseph Dombrowizky, on the ground of adultery.
The time for lodging defences having passed without any defences having been lodged, the Lord Ordinary, on the pursuer's motion, found the libel relevant, and fixed a diet for proof.
The defender appeared at the diet of proof by counsel, and cross-examined the pursuer's witnesses. At the close of the pursuer's evidence he moved for and obtained an adjournment in order that he might lead evidence in defence. He was also allowed to put in defences, in which he denied the adultery, and pleaded no jurisdiction.
On 31st January 1895 the Lord Ordinary ( Kincairney), without having closed the record, repelled the defences, and granted decree of divorce.
The defender reclaimed — The pursuer objected to the competency of the reclaiming-note on the ground, inter alia, that a copy of the record was not appended thereto in terms of section 77 of the Act of Sederunt of 11th July 1828, which provides—“That reclaiming-notes not being against decrees in absence, or upon failure to comply with orders, shall at first be moved merely as single bills, and immediately ordered to the roll, and shall then be put out in the short or summar roll as the case may be: Provided always that such notes if reclaiming against an Outer House interlocutor shall not be received unless there be appended thereto copies of the mutual cases, if any, and of the papers authenticated as the record in terms of the statute, if the record has been closed, and also copies of the letters of suspension or advocation and of the summons with amendment, if any, and defences.”
Argued for the pursuer—A copy of the record was not appended to the reclaiming—note as was prescribed by section 77 of the Act of Sederunt, 11th July 1828, and it therefore should be dismissed as not being in due form.
Argued for the defender — The section did not apply, for in this case the record had never been closed, and the section only dealt with cases in which there were closed records — Fleming v. Morrison, June 4, 1835, 13 S. 859.
At advising—
The Act of Sederunt imposes on a reclaimer the duty of appending to the reclaiming-note “copies of the mutual cases, if any, and of the papers authenticated as the record, in terms of the statute, if the record has been closed,” and it goes on to say that the reclaimer must append “copies of the letters of suspension or advocation and of the summons with amendment, if any, and defences.”
The duty of producing the summons and of appending the record to the reclaiming—note does not arise unless you have a closed record, which here you have not.
The Court repelled the objection.
Counsel for the Pursuer — Trotter. Agent— G. Jack, S.S.C.
Counsel for the Defender — Blackburn. Agents— Anderson & Green, S.S.C.