I would concur with the majority opinion in affirming the action of the trial court as to the judgment for alimony alone if that were the only question involved here. There is no bill of exceptions before us and we must presume, in the absence of any evidence to the contrary, that the action of the court was founded upon sufficient evidence and was correct.
I would concur with the majority opinion in regard to the action of the trial court in striking the answer and cross-petition from the files in any other type of case except one for divorce or alimony alone. In divorce cases and alimony cases the partners to the marriage contract separate. Marriage, in addition to being a contract, creates a status and public policy is concerned in the preservation of such status as long as possible and is concerned in not dissolving such status except as a last resort. Therefore, divorce and alimony cases are accorded different treatment from ordinary civil actions (17 Ohio Jurisprudence [2d], 660, Section 3). The case cannot be heard before six weeks has expired after service, and many courts, by rule, extend this period to ten weeks or longer. No rule day by which the defendant must answer is provided by statute. There can be no decree by default. In order to hold that a rule day is fixed when the court, ex parte, fixes a date for hearing the testimony it is necessary to imply or assume that a rule day is necessary because civil actions have rule days. The Legislature has fixed a rule day in all other cases and its failure to fix a rule day in divorce cases is significant. I gather from the cases, statutes and the texts that it is never too late to file a cross-petition in these cases until the decree is entered, and by that I mean journalized. Of course, due process would require granting time for the plaintiff to prepare her defense before hearing a cross-petition. However, the law requires a lapse of time before hearing these cases and a little more time would not unduly harm the parties.
It cannot logically be inferred or assumed that because the defendant here did not file his answer and cross-petition earlier he was in default or in neglect of his duties. For all that appears from the record he could have been diligently attempting to effect a reconciliation which the law encourages.
I must also observe that I can see no excuse or reason for *Page 145 the attempt to journalize the decree in this case by a journal entry nunc pro tunc. Many entries are delayed for various reasons. The entry here was delayed only from April 20th to June 8th and whether the delay was deliberate or unavoidable is immaterial. A journal entry nunc pro tunc is necessary and serves a useful purpose in a proper case, but this case certainly is not such a proper case.
I would, therefore, hold the striking of the answer and cross-petition from the files to be reversible error and remand the cause.