Opinion
Decided December 21st, 1925.
Where a wife filed a petition for divorce on the ground of desertion, and a solicitor was appointed actively to defend, the husband being confined in an asylum, and an answer denying the desertion was filed, and later an amended answer and counter-claim alleging adultery of the wife, and no answer to the counter-claim was filed, but the wife obtained a voluntary dismissal of her petition, if there is any validity to the counter-claim, the cause should proceed as an ex parte suit under rule 266A if at all.
On petition for divorce.
Mr. Azariah M. Beekman, for the petitioner.
Mr. Ryman Herr, for the defendant.
The wife filed petition for divorce on the ground of desertion. A solicitor was appointed, under the statute, actively to defend, the husband being confined in an insane asylum. Answer denying the desertion was filed, and later an amended answer and counter-claim, alleging adultery by the wife. The wife filed no answer to the counter-claim, and has now obtained voluntary dismissal of her petition.
It is difficult to see that there can be valid prosecution of the counter-claim, which is filed by a guardian ad litem (whose authority is only to defend), and which has an affidavit of non-collusion made, not by the defendant, but by the solicitor.
However, if there can be any validity to further proceedings on the counter-claim, it is obvious that the present situation comes within the spirit of rule 266A, and the cause should proceed as an ex parte suit, if at all.