Opinion
16764
July 17, 1953.
Mr. W.G. Finley, of York, for Appellant, cites: As to Divorce Decree of sister state being "res adjudicata" entitled to full faith and credit, and not being subject to collateral attack by a stranger: 49 S.E.2d 570, 213 S.C. 369; 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1430; 305 U. S. 32, 59 S.Ct. 3, 83 L.Ed. 26; 118 A.L.R. 1518; 340 U.S. 581-589, 95 L.Ed. 552; 1 S.E.2d 443; 30 S.E.2d 108; 197 S.E. 878; 72 S.Ct. 157, 96 L.Ed. 94. As to new matter being set up in answer and plaint: 213 S.C. 369, 49 S.E.2d 570; 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1430; 340 U.S. 581, 95 L.Ed. 552; 72 S.Ct. 157, 96 L.Ed. 94.
Messrs. Roddey Ward, of Rock Hill, for Respondent, cite: As to Divorce Decree rendered by a sister state to a plaintiff who was not domiciled nor served with a cross bill being subject to collateral attack: 72 S.Ct. 157, 96 L.Ed. 94; 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 15; 47 S.E.2d 716, 212 S.C. 311; 76 S.C. 145, 56 S.E. 673; 209 S.C. 287, 39 S.E.2d 905; 99 A.L.R. 1316; 159 S.C. 506, 157 S.E. 833. As to answer not containing new matter, and hence not subject to demurrer: 110 S.C. 534, 96 S.E. 532. As to only a portion of one defense being attacked by demurrer: 131 S.C. 86, 139 S.E. 174. As to court correctly holding that answer constituted a defense to the complaint: 303 U.S. 59, 58 S.Ct. 454, 82 L.Ed. 649.
The following is the Order of Judge Moss in the court below.
Plaintiff's demurrer to Defendant's Answer in the above entitled matter, an action for divorce, was argued before me at York on April 30, 1952. Present were W. Gist Finley, of the York Bar, Plaintiff's attorney, and Robert M. Ward, of Roddey Ward, Rock Hill, Defendant's attorneys.
The action was commenced by the issuance and service of Summons and Complaint on November 9, 1951, the Complaint alleging in paragraph one (1) thereof that on June 25, 1942, in the County and State aforesaid, Plaintiff Evelyn M. Bryant was duly and legally married to Defendant Robert E. Bryant. On or about January 15, 1952, Defendant made and served his Answer, which embodies a first and second defense. The First Defense contains in paragraph one (1) a general denial; in paragraph two (2) admission of Defendant's residence in York County, South Carolina, and that the parties had lived together; and in paragraph three (3) an admission that legal title to an interest in certain real estate is in Plaintiff.
Paragraph four (4) of the First Defense alleges that a prior divorce of Plaintiff, obtained in Georgia, is invalid for non-residence of the Plaintiff in the rendering state, despite her allegation in such action of residence in Georgia for twelve (12) months. Paragraph five (5) of said defense alleges that the marriage here sought to be dissolved was null and void ab initio for lack of capacity of Plaintiff to contract marriage. Paragraph six (6) alleges the Court is without jurisdiction to grant a divorce herein, for the reason that the parties have never been legally married as alleged in the Complaint.
On April 23, 1952, Plaintiff demurred to the Answer on the ground that so much of the First Defense as alleges the nullity of the Plaintiff's first divorce does not constitute a legal and valid defense, for the reason that validity of this prior decree is res judicata and that the decree is entitled to full faith and credit in the courts of this state and is not subject to collateral attack by a stranger in this proceeding. Plaintiff then prays that paragraphs four (4), five (5), and six (6) of the Answer be dismissed.
Defendant's counsel attacked the demurrer on four technical grounds: (1) That prior to service of the Demurrer, all issues of law and fact in this case had been referred to a Special Referee for determination by him and for his report to this Court, (2) That the question of validity of the prior divorce had been raised by motion of Defendant and this matter referred to the Special Referee, (3) That a demurrer would not lie to the Answer for the reason that the Answer contained no new matter, and (4) That Demurrer was directed only to part of one defense of the Answer.
As to the first two objections, the findings of a Special Referee would not be final but subject to confirmation, modification or reversal by the Court. Therefore, there appears no practical reason why the Court should not proceed now to determination of the efficacy of the Demurrer. And the fact that the same or a similar question had been raised by Defendant would not, in itself, bar a pleading otherwise proper on the part of Plaintiff.
As to Defendant's fourth objection, the Demurrer on its face is addressed only to paragraphs four (4), five (5), and six (6) of the Answer. Again Section 471 of the Code of 1942 permits a demurrer to an answer (containing new matter, where on its face it does not constitute a counter-claim or defense) but the Plaintiff may demur only to "one or more of such defenses or counterclaims." This Demurrer goes only to a portion of one of the defenses. In the case of Caldwell v. McCaw, 141 S.C. 86, 139 S.E. 174, the court held that in order to be sustained, a demurrer must be interposed to the whole complaint if the complaint states only one cause of action, or to at least one entire cause of action if the complaint states more than one cause. The same is true of a demurrer to an answer.
July 17, 1953.
Upon consideration of this appeal we are satisfied that the result of the order of the lower Court is correct for the reason stated in the eighth paragraph of it, which was defendant's fourth objection to the demurrer; and the order is adopted and will be published as the judgment of this Court omitting the seventh, the ninth and subsequent paragraphs. The plaintiff has leave, if she is so advised, to serve and file reply, within ten days after remittitur is filed, to any new matter which she may contend is contained in the answer of the defendant; the issues which she attempted to raise by demurrer may thus be preserved for adjudication upon trial.
BAKER, C.J., and FISHBURNE, STUKES and OXNER, JJ., concur.