Opinion
Record No. 1968
Rehearing refused January 9, 1939.
Present, Campbell, C.J., and Holt, Hudgins, Browning, Eggleston and Spratley, JJ.
1. APPEAL AND ERROR — Record — Failure to Incorporate in Record Evidence Taken Ore Tenus — Case at Bar. — In the instant case, a suit for divorce, the principal assignment of error was that the evidence was insufficient to support the decree, but no steps were taken either by a bill or certificate of exception, or by certificate under Rule XXIV of the Supreme Court of Appeals, to preserve and incorporate in the record the evidence taken ore tenus.
Held: That since the Supreme Court of Appeals did not have before it all of the evidence on which the conclusions of the trial court were based, it was not in a position to pass upon the assignment of error, and the decree being presumptively correct the lower court's findings of fact must stand.
2. APPEAL AND ERROR — Record — Certificate of Judge after Adjournment of Term Giving Substance of Oral Testimony — Case at Bar. — In the instant case, a suit for divorce, the principal assignment of error was that the evidence was insufficient to support the decree, but no steps were taken either by a bill or certificate of exception, or by certificate under Rule XXIV of the Supreme Court of Appeals, to preserve and incorporate in the record the evidence taken ore tenus. Appended to the record was a certificate signed by the trial judge more than five months after the entry of the decree giving his "recollection" of the substance of the oral testimony heard by him. It was argued that this certificate showed that the evidence taken by depositions and heard in open court was insufficient to support the findings of the trial court.
Held: That the certificate was not a part of the record and could not be considered by the Supreme Court of Appeals.
3. APPEAL AND ERROR — Record — Power of Trial Court to Add to or Amend after Adjournment of Term. — After the adjournment of the term at which a final decree has been entered the record is closed and the trial court has no jurisdiction or power to amend or add to the record except by a bill or certificate of exception under sections 6252 and 6253 of the Code of 1936, or by a certificate under Rule XXIV of the Supreme Court of Appeals.
4. DIVORCE — Complaint — Sufficiency of Allegations to Warrant Decree — Case at Bar. — In the instant case, a suit for divorce, the bill of complaint alleged that the wife's continued refusal to consummate the marriage throughout the ten years of its duration, coupled with other conduct towards her husband, amounted to cruelty and constructive desertion which entitled him to a divorce. Although the insufficiency of the allegation was not raised in the court below, it was contended on appeal that, admitting every allegation of the bill of complaint to be true, it was insufficient to entitle complainant to a divorce.
Held: That the bill was sufficient to sustain a decree of divorce on the ground of constructive desertion.
5. DIVORCE — Complaint — Cure of Lack of Particularity by Amendment. — Where a bill for divorce on the grounds of cruelty and constructive desertion contains the necessary statutory jurisdictional averments, but is inartificially drawn and lacks particularity as to the alleged acts of misconduct of the wife, the neglect of her marital duties, and the dates of such occurrences, such lack of particularity can be cured by amendment if the attention of the trial court is directed thereto.
Appeal from a decree of the Circuit Court of the city of Richmond. Hon. Julien Gunn, judge presiding.
Affirmed.
The opinion states the case.
Gordon B. Ambler, for the appellant.
John W. Fussell and Robert Lewis Young, for the appellee.
This is a suit for divorce brought by James Pope Jones against Nellie Davis Jones. The bill of complaint alleges that the wife's continued refusal to consummate the marriage throughout the ten years of its duration, coupled with other conduct towards her husband, amounted to cruelty and constructive desertion which entitled him to a divorce.
The decree appealed from awarded the complainant an absolute divorce, reciting that it was based upon "depositions taken before a commissioner in chancery * * *, and upon testimony given orally in open court."
No steps were taken either by a bill or certificate of exception, or by a certificate under Rule XXIV of this court, to preserve and incorporate in the record the evidence taken ore tenus. Not having before us all of the evidence on which the conclusions of the trial court were based, we are not in a position to pass upon the principal assignment of error that the evidence is insufficient to support the decree. Presumptively the decree is correct and therefore the lower court's findings of fact must stand. Potts v. Flippen, 171 Va. 52, 197 S.E. 422; Claud v. Pulley, 169 Va. 467, 194 S.E. 670; Nethers v. Nethers, 160 Va. 335, 168 S.E. 428; Ross Cutter Silo Co. v. Rutherford, 157 Va. 674, 161 S.E. 898; Turner v. Holloway, 146 Va. 827, 132 S.E. 685; Patterson v. Commonwealth, 139 Va. 589, 123 S.E. 657.
There is appended to the record a certificate signed by the trial judge more than five months after the date of the entry of the final decree giving his "recollection" of the substance of the oral testimony heard by him. It is argued that this certificate shows that the evidence taken by depositions and heard in open court is insufficient to support the findings of the trial court.
[2, 3] It is well settled that such a certificate is not a part of the record and can not be considered by us. After the adjournment of the term at which a final decree has been entered the record is closed and the trial court has no jurisdiction or power to amend or add to the record except by a bill or certificate of exception under Code, section 6252, as amended by Acts 1930, chapter 246, and section 6253, as amended by Acts 1934, chapter 90, or by a certificate under Rule XXIV of this court. Nethers v. Nethers, supra ( 160 Va., at page 339, 168 S.E. 428); Owen v. Owen, 157 Va. 580, 585, 162 S.E. 46; Ross Cutter Silo Co. v. Rutherford, supra ( 157 Va., at page 683, 161 S.E. 898); Burks' Pleading Practice (3d Ed.), section 284, p. 492.
In Owen v. Owen, supra, this court held that after the expiration of the time for filing a bill or certificate of exception the trial court had no power to put into the record an agreed statement of facts, even by consent of the parties.
In the instant case to hold that the certificate, signed by the trial judge more than five months after the adjournment of the term at which the final decree was entered, became a part of the record would simply nullify the express provisions of the above statutes requiring bills and certificates of exception to be signed and filed within the time therein prescribed.
The next assignment of error is that admitting every allegation of the bill of complaint to be true, it is insufficient to entitle the complainant to a divorce on the grounds of cruelty and constructive desertion.
There was no demurrer filed to the bill of complaint and, so far as the record discloses, the insufficiency of the allegations was not raised in the court below. But aside from this we are of opinion that the bill of complaint is sufficient to sustain a decree for divorce on the ground of constructive desertion under the principles laid down in Chandler v. Chandler, 132 Va. 418, 112 S.E. 856.
The bill contains the necessary statutory jurisdictional averments. And while it is inartificially drawn and should have been more specific as to the alleged acts of misconduct of the wife, the neglect of her marital duties, and the dates of such occurrences, such lack of particularity could and doubtless would have been cured by amendment if the attention of the trial court had been directed thereto. Rule XXII of this court is designed to effect this.
The decree appealed from is
Affirmed.