This Marriage Is Sunk

I thought I’d begin this blog by summarizing a case I find rather amusing, brought to us courtesy of the Court of Appeals of Ohio, First Appellate District, Hamilton County. It seems Ms. Nadine Proctor made an attempt to use the sinking as a means to having her divorce decree vacated, but the court wasn’t buying it.

Percy and Nadine Procter were married in London in 1909. Percy subsequently brought a petition for divorce against Nadine, personal service was made on her, after which she filed an answer admitting the marriage, but denying all other allegations of the petition. A decree of divorce was granted to Percy after the case was tried in the common pleas court in Nadine’s absence. The Court also found that, by reason of a written agreement entered into by Nadine and Percy, she was not entitled to any alimony. Approximately seven months after the decree was entered (which was on June 8, 1912), Nadine filed a petition to vacate the decree (on January 4, 1913, to be exact).

In her petition to vacate the decree, Nadine claimed she was unable to attend the trial due to “unavoidable casualty and misfortune” because it was necessary for her to return to Europe after the summons was served to attend to business matters. Further, she claimed she made arrangements with attorneys, whom she didn’t name, to see to it that the case was not tried until her return. When she received notice of the upcoming trial, Nadine claimed she left Europe on Titanic.

After Titanic hit the iceberg, Nadine claimed she became severely injured while being lowered into a lifeboat, and that she was so shocked by being out in the middle of the ocean, that she became unconscious and remained so until waking up in a hospital in London, where she remained until traveling, on May 12, to Russia where her mother lived. She then sailed for the United States and arrived on August 15, 1912, aboard the steamship President Lincoln to find that a decree had been entered in her case the preceding June.

Nadine was relying on a section of the General Code, which empowers the common pleas court to vacate or modify a judgment or order “for unavoidable casualty or misfortune, preventing the party from prosecuting or defending.” The court points out the code authorizes the setting aside of a judgment for unavoidable casualty or misfortune only when it is of such a character as prevents the party from prosecuting or defending, not when it only prevents a person from attending a trial in person.

The court notes she could have given her deposition while in London in May of 1912 and filed it in the common please court of Hamilton County before the decree was rendered on June 8, 1912, because she was able to travel from London to St. Petersburg during that time. They also point out that it would be inconceivable for the court to have denied her a delay if she had, indeed, been a survivor of the sinking and had asked for one. They also note she had failed to employ counsel after summons had been served on her, among other things. Finally, the court wonders the following –

“If it be true as she avers, and the truth of the averment must be assumed for the purposes of this case, that she was a passenger on the steamship Titanic at the time it collided with an iceberg, then the query naturally arises how she came to be thereafter in a hospital in London, in view of what is said to be well-known current history that the survivors of that shipwreck were picked up at sea by a steamer which landed them at an American port.”

Hmmmmm . . .

Procter v. Procter, 245 Ohio App., 245 (1915).