Stewart v. Stewart [1906] ScotLR 43_522 (20 March 1906)

Stewart v. Stewart [1906] ScotLR 43_522 (20 March 1906)

It is competent for a pursuer to raise an action of separation and aliment while a divorce action is pending, provided the remedies are alternative and not concurrently decreed. A minute of abandonment must be in statutory form and carry full expenses. Pleas of incompetency and lis alibi pendens are not sustained in this context.

Citation
[1906] ScotLR 43_522
Parties
Pursuer: Marion Fletcher or Gordon Stewart; Defender: James Gordon Stewart
Jurisdiction
Scotland
Judgment Date
20 March 1906
Procedural Posture
Civil / Appeal/reclaiming Note and Report on Pleas
Outcome
Reclaiming note refused; pleas of incompetency and lis alibi pendens repelled; motion for sist refused.
Legal Topics
Divorce, Separation and Aliment, Abandonment of Action, Lis Alibi Pendens, Expenses
Family Law Civil Procedure Divorce Separation and Aliment Abandonment of Action Lis Alibi Pendens Expenses

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 10 Party arguments 2
Sign in to unlock

Parties

Marion Fletcher or Gordon Stewart

Pursuer

James Gordon Stewart

Defender

Procedural Posture

Civil / Appeal/reclaiming Note and Report on Pleas

Legal Issues

  1. 1 Competency of raising action of separation and aliment while divorce action is pending
  2. 2 Validity and form of minute of abandonment under statute
  3. 3 Application of lis alibi pendens and incompetency pleas

Ratio Decidendi

It is competent for a pursuer to raise an action of separation and aliment while a divorce action is pending, provided the remedies are alternative and not concurrently decreed. A minute of abandonment must be in statutory form and carry full expenses. Pleas of incompetency and lis alibi pendens are not sustained in this context.

Court Disposition

Reclaiming note refused; pleas of incompetency and lis alibi pendens repelled; motion for sist refused.

Orders

  • Adhere to interlocutor of Lord Dundas dated 19th January 1906
  • Refuse reclaiming note