
    APPEAL — DIVORCE AND ALIMONY.
    [Lucas (6th) Circuit Court,
    June 12, 1911.]
    Wildman, Kinkade and Richards, JJ.
    Elizabeth Wolcott v. Robert E. Wolcott.
    1. Extreme Cruelty and Habitual Drunkenness before Defendant’s being Adjudged Insane Sufficient Grounds for Divorce.
    A petition for divorce against an insane defendant, setting forth extreme cruelty and habitual drunkenness, for more than three years prior to defendant’s being adjudged insane and committed to a state hospital, states grounds sufficient for granting divorce.
    2. Appeal Lies to Order Dismissing Divorce Petition Alleging Grounds Accruing Prior to Defendant’s Insanity Decreep.
    Appeal, b-ut not error under Gen. Code 12002, lies to an order vacating the appointment of a trustee for an insane defendant and dismissing, without hearing on the merits, a petition for divorce alleging accruing prior to insanity decreed. ’
    Error from common pleas.
    
      Earl L. Peters, for plaintiff in error.
   KINKADE, J.

This was an action for a divorce in the court of common pleas. The petition set forth as grounds for the divorce, extreme cruelty and also habitual drunkenness on the part of the defendant for more than three years prior to March 9, 1901, and stated that these grounds arose while the defendant was sane. The petition further stated that the defendant was, on March 9, 1901, duly and legally committed to the Toledo State Hospital for the Insane at Toledo, Ohio, by the probate court of Wood.' county, Ohio, as an insane person and that he has ever since been insane, and since 1901 has been continuously confined in said asylum, and that at the time of.the filing of the petition the defendant was incurably insane.

On motion of the plaintiff a trustee was duly appointed by the court of common pleas to represent the defendant in the action, and the trustee filed an answer.

"When the case was called for hearing in the court of common pleas the trial judge was in doubt (so we are informed by counsel for plaintiff) as to the right of the plaintiff to maintain an action for divorce against one then insane, and yet the court was not disposed to enter judgment against the plaintiff in such form as to deny plaintiff the right to review on appeal, that question in this court. The common pleas court vacated its order appointing the trustee, as having been made without authority of law, and then dismissed the petition stating in the entry that such dismissal was without any hearing on the merits and was based solely on the statement in the petition that the defendant was an insane person. The plaintiff appealed the case to this court and also filed a petition in error here.

The statutes of Ohio never contained any provision authorizing proceedings in error to review a decision of the court of common pleas entered in a divorce case. The courts have uniformly held that no such right of review on error exists in Ohio.

I read from the case of Parish v. Parish, 9 Ohio St. 534 [75 Am. Dec. 482], the paragraph of the opinion of the court found on page 538:

“The statute of March 14, 1843, conferring jurisdiction in divorce eases upon the courts of common pleas, which was. in force when these proceedings were had, provides that “no appeal shall be obtained from the decree, but the same shall be final and conclusive.” Cur wen, 991. This statutory provision is nothing more than a legislative recognition of the principle of public policy, which had been repeatedly affirmed by the courts, that a judgment or decree which affects directly the status of married persons by sundering the matrimonial tie, and thereby enabling them to contract new matrimonial relations with other and innocent persons, should never be reopened. Such a course would endanger the peace and good order of society, and the happiness and well being of those who innocently relying upon the stability of a decree of a court of competent jurisdiction, have formed a connection with the person who, wrongfully perhaps, procured its promulgation.”'

This case was followed by the Supreme Court in the case of Mulligan v. Mulligan, 82 Ohio St. 426.

This court passed upon this question in the ease of Clowry v. Clowry, 8 Circ. Dec. 652 (16 R. 302). The opinion is by Judge Scribner, and upon a full examination of all the cases in Ohio the. right to prosecute error in divorce cases is denied.We find some statements in the opinion concerning the right of appeal which were unnecessary in deciding the error case then before the court (there being no question as to the right of appeal them before the court), in which we do not concur.

The court of common pleas was given jurisdiction in matters of divorce and alimony, concurrent with the Supreme Court, by the act of March 13, 1843, and by Sec. 3 of that act, all right of appeal was denied and the decree was declared final and conclusive. 2 Curwen’s Statutes, Chap. 466.

March 11, 1853, the law of divorce and alimony was again amended, and while Sec. 16 of that act denied all right of appeal, -Sec. 17 provided for an appeal under certain conditions named in 3 Curwen’s Statutes, Chap. 1252, Sec. 11.

The law was again amended April 15, 1857, 54 O. L. 131. This act gave the right of appeal under certain conditions, one being where a petition is dismissed without a hearing on the merits, and also provided for an appeal in any case from that part of the decree -relating to alimony only.

These two provisions for appeal, when a petition is dismissed without a hearing jon the merits, and from that part of the decree pertaining to alimony alone, have been in the statutes ever since 1857, the different acts being but slightly different in form.

The provisions of the present General Code on this subject will be found in Gen. Code 12002, which reads as follows:

“No appeal shall be allowed from a judgment or order of the common pleas court under this chapter, except from an order dismissing the petition without final hearing, or from a final qrder or judgment granting or refusing alimony, or in cases under the .next preceding section. When judgment is rendered for both divorce and alimony, the appeal will lie only to so much of the judgment as relates to the alimony. When eel appeal is taken by the wife, she shall not be required to give bond. ”

Plaintiff’s petition having been dismissed without a hearing on the,merits, he is properly here on appeal, presenting for our determination the question whether his petition should have been so dismissed.

We are of the opinion that the petition states grounds sufficient for the granting of the divorce, it being stated in the petition that the statutory grounds therein set forth arose prior to the insanity of the defendant. It is not claimed that the insanity itself is a ground for the divorce. '

The order of the court of common pleas appointing a trustee to represent the defendant was properly made, and should not have been vacated.

The appeal case will be remanded to the court of common pleas for further proceedings according to law.

The petition in error will be dismissed for want of jurisdiction.

Wildman and Richards, JJ., concur.  