Corbidge (Somerville's Trustee) v. Somerville and Another [1913] ScotLR 591 (19 March 1913)

Corbidge (Somerville's Trustee) v. Somerville and Another [1913] ScotLR 591 (19 March 1913)

A trustee in bankruptcy with a patrimonial interest affected by a decree of divorce pronounced in absence and allegedly without jurisdiction is entitled to challenge the decree by reduction, as the rules of the Commissary Court regarding finality do not bind the Court of Session, and a decree pronounced without jurisdiction is null.

Citation
[1913] ScotLR 591
Parties
Pursuer/respondent: Cooper Corbidge (Somerville's Trustee); Defender/reclaimer: Mrs Caroline Stuart Smith or May Somerville; Defender: S.W. May Somerville
Jurisdiction
Scotland
Judgment Date
19 March 1913
Procedural Posture
Action for Reduction of Decree of Divorce / Appeal (reclaiming Motion) Against Lord Ordinary's Interlocutor Allowing Proof
Outcome
Court adhered to the Lord Ordinary's interlocutor; action allowed to proceed to proof.
Legal Topics
Divorce, Jurisdiction, Reduction of Decree, Trusts and Bankruptcy, Status of Parties
Family Law Bankruptcy Law Private International Law Divorce Jurisdiction Reduction of Decree Trusts and Bankruptcy Status of Parties

Case Brief

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Parties

Cooper Corbidge (Somerville's Trustee)

Pursuer/respondent

Mrs Caroline Stuart Smith or May Somerville

Defender/reclaimer

S.W. May Somerville

Defender

Procedural Posture

Action for Reduction of Decree of Divorce / Appeal (reclaiming Motion) Against Lord Ordinary's Interlocutor Allowing Proof

Legal Issues

  1. 1 Whether a trustee in bankruptcy of a spouse has title to sue for reduction of a decree of divorce on the ground of lack of jurisdiction
  2. 2 Whether the rules of the Commissary Court regarding finality after a year and a day apply to the Court of Session
  3. 3 Whether a decree of divorce in absence can be reduced after a year and a day on grounds of no jurisdiction

Ratio Decidendi

A trustee in bankruptcy with a patrimonial interest affected by a decree of divorce pronounced in absence and allegedly without jurisdiction is entitled to challenge the decree by reduction, as the rules of the Commissary Court regarding finality do not bind the Court of Session, and a decree pronounced without jurisdiction is null.

Court Disposition

Court adhered to the Lord Ordinary's interlocutor; action allowed to proceed to proof.

Orders

  • Repelled the defender's first three pleas-in-law (no title to sue, irrelevancy, incompetency based on year and day).
  • Allowed proof of the pursuer's averments.