Compton v. Compton

Headnote

Calendar practice—divorce.

In this action for the dissolution of the marriage contract on the ground of adultery, the cause was noticed for the special term and was put on the calendar for trial. When the case was called in its order upon the calendar, an application by the defendant was made to have the issues of adultery tried by a jury. The court granted the order under section 970 of the Code, and specified the issues to be tried. The order was made on the 18th of October, and directed that the cause be set down for trial on the 25th.of October, upon the day calendar of that day, in part 3, trial term, of this court, without further application.

The appeal is from that part of the order fixing the time and place for trial.

The court, at General Term, said: ‘‘ The order having been made by the court after the issues had been settled and the case on the calendar by notice, the court, we think, was invested with full authority for the trial of the cause. The disposition of the whole case was placed in the discretion and judgment of the trial judge, who had it in his power, at the time when the cause was called, to hear the issues of law either before or after the issues of fact had been determined, depending upon the situation and convenience of the parties. The case of Leslie v. Leslie (11 Abb. Pr. N. S. 311), is not in point, as no issues had been settled when the motion there was made to put the case on the calendar for trial.”