Longfellow v. Longfellow , 1 Cl. Ch. 344 ( 1840 )

The Vice Chancellor.

The order of the 23d Nov. 1836, was granted upon the ex parte application of the complainant. This is the irregularity complained of, as the reason foi; setting it aside. Applications for alimony, and expenses of conducting a suit of this character are and should be made upon petition stating the facts upon which the application Is grounded.

When the opposite party appears by solicitor, the application should be preceded by service of a copy of the petition with notice of the application.

This is the usual and proper mode. I am not prepared to say, but in an extreme case, an ex parte order for an allowance might be granted. However this may be, it further appears in this case, which >>j the controling circumstance with me, that there was a qnEj c]ecree jn ^he cause, disposing of the entire cause, before notice of this motion was given. The order sought to be vacated was an interlocutory one. It is deemed to have been irregular, it probably was. But I understand that a final decree in a cause disposes of the whole cause, and of all previous interlocutory questions. I have not the papers tó inform me upon what ground the Vice Chancellor made his decree, particularly in relation to costs.

I am to suppose that he was aware of the existence of the two orders for the payment to the complainant, that he took them into account in determining the question of costs, and that as no provision was made for repayment, or for costs, he intended there should he no repayment. It seems to me it is hardly competent to rake up the ashes of this dead suit, to ascertain if there was not some irregularity in some of the interlocutory proceedings therein. I suppose that the final decree gave the coup de grace to the whole suit and all proceedings therein previous to such final decree. There can "be no resusiiation unless by calling the decree in question in some proper mode. This'being my opinion it is hardly necessary to enquire whether the delay from the first submission of the papers, on a similar motion to a former Vice Chancellor, is sufficiently accounted for down to the present time, and the argument of the present motion.

The motion is denied with costs.