Harriett F. Murphy v. Simon J. Murphy , 221 F.2d 90 ( 1955 )

221 F.2d 90

Harriett F. MURPHY, Appellant,
v.
Simon J. MURPHY, Appellee.

No. 12337.

United States Court of Appeals, District of Columbia Circuit.

Argued January 11, 1955.

Decided February 10, 1955.

Mr. Harold D. Cohen, Washington, D. C., for appellant. Messrs. Frederic J.

Ball and Vernon C. Kohlhaas, and Raymond J. McDonough, Washington, D. C., were on the brief for appellant.

Mr. Jean M. Boardman, Washington, D. C., with whom Mr. James E. Faust, Washington, D. C., was on the brief, for appellee.

Before FAHY, DANAHER and BASTIAN, Circuit Judges.

FAHY, Circuit Judge.

1

Appellant is the wife of appellee. She sued in the District Court for a divorce on the ground of desertion and in her complaint also alleged facts upon the basis of which she prayed that certain described real estate located in the District of Columbia and standing in the names of her husband and herself as tenants in common be decreed to belong to her alone. Before her marriage to appellee it had stood in her name as sole owner. After a trial the court dismissed appellant's complaint. Her appeal does not contest the judgment insofar as it reflects the decision of the court denying her a divorce.* She seeks reversal only of the denial of the adjudication she sought with respect to the District of Columbia real estate. The District Court thought it lacked jurisdiction to make such an adjudication in the absence of a judgment for divorce. We have held to the contrary in the recent case of Holcomb v. Holcomb, 93 U.S.App.D.C. 242, 246, 209 F. 2d 794, 798. See, also, Wheeler v. Wheeler, 88 U.S.App.D.C. 193, 188 F.2d 31; Reilly v. Reilly, 86 U.S.App.D.C. 345, 182 F.2d 108; Rule 18, Fed. Rules Civ.Proc., 28 U.S.C.A. Within these decisions the complaint in the present case sets forth a cause of action respecting appellant's claim to be the sole owner of the District of Columbia real estate, independent of her claim of right to a divorce. Appellee does not now contend otherwise.

2

The judgment accordingly will be reversed in part and the case remanded so that the District Court may consider and decide between the parties the question of ownership of and title to the District of Columbia real estate described in the complaint. The court may receive additional evidence on application of either party, or absent such application, decide the case on the record made. In other respects the judgment will be affirmed.

3

It is so ordered.

Notes:

*

Nor does the appeal contest the following additional features of the judgment: (1) provisions for separate maintenance and support of appellant by appellee and denying counsel fees to appellant's counsel, and (2) the fact that it leaves unaffected the title to certain real estate in Pennsylvania which the court found was in the names of the husband and wife as tenants by the entirety