[1943] EACA 81
Where a divorce petition is dismissed before the respondent has entered an appearance, the dismissal does not have the effect of terminating the proceedings or barring the petitioner from instituting a new suit on the same allegations. The petitioner is at liberty to file a new petition in the future, should he be...
Source-derived case information.
- Citation
- [1943] EACA 81
- Parties
- Petitioner: Major John Mildmay Wallington; Respondent: Gwyneth Frances Mary Wallington; Co Respondent: Lieutenant-Colonel Pierrepont Rodney Miller Mundy
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Divorce Cause No. 29 of 1941
- Procedural Posture
- Divorce Cause / Application for Withdrawal or Dismissal of Petition Prior to Respondent's Appearance
- Outcome
- Petition dismissed with leave to file a new petition in future.
- Judges
- Sheridan CJ
- Legal Topics
- Divorce Jurisdiction, Withdrawal of Petition, Dismissal of Petition, Consequences of Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Major John Mildmay Wallington
Petitioner
Gwyneth Frances Mary Wallington
Respondent
Lieutenant-Colonel Pierrepont Rodney Miller Mundy
Co Respondent
Procedural Posture
Divorce Cause / Application for Withdrawal or Dismissal of Petition Prior to Respondent's Appearance
Legal Issues
- 1 Whether a petitioner may withdraw or have a divorce petition dismissed before the respondent enters appearance.
- 2 What are the legal consequences of dismissing a divorce petition before the respondent appears.
Ratio Decidendi
Where a divorce petition is dismissed before the respondent has entered an appearance, the dismissal does not have the effect of terminating the proceedings or barring the petitioner from instituting a new suit on the same allegations. The petitioner is at liberty to file a new petition in the future, should he be so advised. The consequences of such dismissal are not finally determined in this judgment, but the order of dismissal is made without prejudice to the petitioner's right to bring a subsequent petition.
Court Disposition
Petition dismissed with leave to file a new petition in future.
Orders
- The petition is dismissed with leave to file a new petition in future alleging the same charges together with new matter, if any.
Full Case Text
Judgment text and source record
11 paragraphs
## **DIVORCE JURISDICTION**
### BEFORE SIR JOSEPH SHERIDAN, C. J.
### MAJOR JOHN MILDMAY WALLINGTON, Petitioner
#### v.
# GWYNETH FRANCES MARY WALLINGTON, Respondent
### and
## LIEUTÉNANT-COLONEL PIERREPONTE RODNEY MILLER MUNDY, Co-Respondent
#### Divorce Cause No. 29 of 1941
- Divorce Jurisdiction—Application for permission to withdraw petition or have it dismissed prior to respondent entering appearance-Consequences of dismissal. - Held (25-3-43).—Where a petitioner applied for permission to withdraw his petition or have it dismissed with leave to file a new petition in future alleging the same charges together with new matter, and the respondent has not entered an appearance, the order of dismissal does not have the effect of terminating the suit.
Stratton for petitioner.
JUDGMENT.-In this petition the respondent has been served, but has not entered an appearance; the co-respondent has not been served. The petitioner asks for permission to withdraw his petition and/or have it dismissed with leave to file a new petition in future alleging the same charges together with new matter, if any. According to Latey on Divorce, 12th Ed. p. 631, "A petitioner may not have a petition dismissed without notice to the respondent if the latter has entered an appearance". From this I infer that he can have a petition dismissed if the respondent has not entered an appearance. As to the consequences of a dismissal in such circumstances it would seem that the petitioner is at liberty to institute a new suit, making the same allegations, should he be so advised (Hall v. Hall and Richardson (1879) L. J. P. 57), but I do not propose to pronounce. upon the consequences in this judgment. The appropriate time at which to deal with the point is if and when a new petition is instituted. On the authority of the case I have cited the present order of dismissal which I hereby make does not have the effect of terminating the proceedings.