No answer to the answer
In the fall of 1937 and on into 1938 … and 1939 … and even 1940, an Alabama couple found themselves locked in a dispute in the Sumter County, Alabama, Circuit Court.
They had experienced what the trial judge later described as a “most unfortunate domestic condition” that ended with a finding that “it would be to the best interest of both parties that the unhappy marital relation existing between said parties should cease.”1
All in all, a rather typical divorce case with allegations and counter-allegations of fraud and abuse, a bitter fight over the custody of the four children of the marriage, and proceedings that — by the time the case ended — had involved a total of 85 witnesses and more than 26,000 words of testimony.2
Talk about a treasure trove for future genealogical research — the case file contains copies of all of the subpoenas to the witnesses. Think about the FAN club3 some descendant years from now will have to work with…
But that’s not what captured The Legal Genealogist‘s attention as much as one document filed by the complainant-wife in response to an amended answer filed by the defendant-husband.
It was her demurrer to the answer — an odd type of document we don’t see much in modern courts that’s defined as:
The formal mode of disputing the sufficiency in law of the pleading of the other side. In effect it is an allegation that, even if the facts as stated in the pleading to which objection is taken be true, yet their legal consequences are not such as to put the demurring party to the necessity of answering them or proceeding further with the cause.
An objection made by one party to his opponent’s pleading, alleging that he ought not to answer it, for some defect in law in the pleading.4
In other words, it was the wife’s way of saying — in very formal legal language — “I don’t have to answer that, do I?”
Demurrers come in two basic flavors — general and special:
• A general demurrer is one which excepts to the sufficiency of a previous pleading in general terms, without showing specifically the nature of the objection; and such demurrer is sufficient when the objection is on matter of substance.5
• A special demurrer is one which excepts to the sufficiency of the pleadings of the other party, and shows specifically the nature of the objection and the particular ground of exception.6
And in this case the complainant-wife’s demurrer was special indeed. The amended answer filed by the defendant-husband “does not contain equity,” she said, through her lawyers, the firm of McQueen, McQueen and McQueen. It “is verbose, and unnecessarily prolix.” And, worst of all, she said it “is multifarious.”7
Let’s see here.
Prolixity, the law dictionary says, is the “unnecessary and superfluous statement of facts in pleading or in evidence. This will be rejected as impertinent.”8
And multifariousness, in a case like this one, is the “fault of improperly joining in one bill distinct and independent matters, and thereby confounding them; as, for example, the uniting in one bill of several matters perfectly distinct and unconnected against one defendant …”9
So our complainant-wife here was saying that the defendant-husband’s answer was long-winded and raised a bunch of issues that weren’t to the point and couldn’t all be raised in this one case.
None of which really mattered in the end.
What mattered was that other thing she said in her demurrer: that the answer “does not contain equity.” And in this context the term meant “a right enforceable in a court of equity.”10
So an answer that did not contain equity would be one that failed to establish that the defendant-husband was entitled to the relief he was asking for.
And that’s how the case turned out: the final decree concluded that the wife’s complaint “contains equity and that she is entitled to the relief prayed for” — a divorce, custody of the kids and alimony — while the husband’s answer “does not contain equity” and, therefore, he was “not entitled to any relief.”
I’d say more about this case, but then this post might be prolix or, worse, multifarious…
- Sumter County, Alabama, Circuit Court, Final Decree, Altman v. Altman, case no. 2356, 11 March 1940; Circuit Court Clerk’s Office, Livingston, Ala.; digital images, “Alabama, Sumter County Circuit Court Files, 1840-1950,” FamilySearch (https://familysearch.org : accessed 1 June 2014). ↩
- Ibid., itemized statement of costs, Spring Term 1940. ↩
- Coined by Elizabeth Shown Mills, the term “FAN club” refers to an individual’s Friends, Associates and Neighbors — the people most closely associated with the person whose records may held shed light on the research target. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 353, “demurrer.” ↩
- Ibid. ↩
- Ibid. ↩
- Sumter Co., Ala., Circuit Court, Demurrer, Altman v. Altman, case no. 2356, filed 19 Dec 1938; Circuit Court Clerk’s Office, Livingston, Ala.; digital images, “Alabama, Sumter County Circuit Court Files, 1840-1950,” FamilySearch (https://familysearch.org : accessed 1 June 2014). ↩
- Black, A Dictionary of Law, 952, “prolixity.” ↩
- Ibid., 792, “multifariousness.” ↩
- Ibid., 428, “equity.” ↩