154 Iowa 573 | Iowa | 1912
In answer to the question how she came to leave their home in November, 1901, the plaintiff testified:
A. Well, about two weeks before the date he took me away, he wanted to go to a sale and 'buy a span of mules, and I told him, for the reason that he was in debt so, he did not need them; he had twenty-four head of work horses, and did not need them, and if I was him I would not do it. Well, that made him mad, and then he wanted to buy a corn busker and pay $350 for it, and I told him I would not do it, and that made him mad, and then for two weeks he was mad about it, and said I had to leave, and said, as long as I was there and interfering with his business, that he could not go ahead and do anything, and I would have to get out of there. Q. What did he do toward getting you out, if anything? A. Well, Mamma, she came up on Friday, and he says to me, ‘Your mother is here, and you can go home with her,’ and I says: ‘Well, 1 ain’t going. I ain’t thought anything about going, nor I ain’t intended to.’ ‘Well,’ he says, ‘you have got to go now. You can go down on the train. I will hitch up and take you.’ ‘Well,’ I says, ‘I ain’t going. The train is past due now, and I won’t have time to get ready anyhow.’ Well, he says he would take me, and Mamma had gone then to the train; so he went out and hitched up, and he came in then, and I was not ready, and the third time he come in he says, ‘You have got to go,’ and wanted to know if I was ready, and I told him I was not, but I told him I could get ready; and I got ready, and he took me to Tama. Q. What was the condition of your health at that time, Mrs. Arment? A. Well] it was pretty 'bad. I was not able to ride to Tama; that was what I told him, •but he said I had to go, and I said, ‘If that is the case, I can go.’ He took me to Mamma’s and told her he had
The defendant claimed that, after the last separation, he asked plaintiff to return to their home, and on her cross-examination she testified on, that subject as follows:
Q. Now, did you ever, after you left there on November 9, 1907, offer to go back home? A. No, sir. I told him there -was no use of my trying to go 'back and stay, because I could not the way he was doing. Q. You had made up your mind you could not stay? A. Yes, sir. The second time I made up my mind I could not. Q. And you have never been back since? A. No, sir. Q. What were the things that made you make up your mind that you could not stay? A. Why, the way he done. Q. What did he do? A. He done lots of things. He just aggravated me all the time, night and day. when he was there. He would do things unreasonable, and everything else that would aggravate a person all the time when he was around. Q. When did you make up your mind you could not stay there ? A. I made up my mind I would not gtay there after he made me leave there the last time. I never told him I would not stay there, because I would have stayed on account of the children, and, as I told him when he took me away the last time, I told him that was the last time he would. I had
The plaintiff’s mother, Mrs. Alice Glaspie, was at the home of the parties the day that the final separation occurred. and she testified about the matter as follows:
I live in Tama City. Have lived’ there five years. I am the mother of Mary Arment, the plaintiff. I know the defendant, James Arment. Have known him about fifteen years. I have stayed at their home. I was often down there helping them quite a little bit. Worked for them. This was during all of the period of their married life. Sometimes I would be there once in a couple of weeks. Sometimes longer, and sometimes maybe a week. I was there on or about the 9th day of November, 1907. Went the night before; I think it was Friday evening. I went home the next day, about half past twelve. I heard a conversation between Mr. Arment and my daughter, relative to her leaving his home. I heard him tell her she had to get out of there. He wanted her to go home with me; that she could not stay any longer. She didn’t go with me. She
Mr. J. L. Bracken was a banker of Tama, with whom the defendant did business, and he testified as follows relative to the transaction of November 9, 1907:
I remember of Mr. and Mrs. Arment coming to my bank about the 9th of November, 1907. Mr. and Mrs. Arment came into the bank, Mr. Arment ahead, and without any ceremony he said, ‘I want to get that eighty acres released and settle up with this woman.’ Q. What did he do after that on the same day? A. What did he do? Q. Yes. A. Well, I don’t know what he did. Q. Ho you remember of his calling an attorney in? A. Hid he call you in that day? I guess that was the day. It has been about two years ago. I think he did call you in there. Q. Ho you remember what Mr. Arment said at that time? A. Why, he repeated his statement that he wanted to get that eighty released, and wanted to settle up with this woman. Mrs. Arment did not say a word that I remembee -of. S'he was crying, and I told them they had better go home. I do not think Mrs. Arment said anything. I have no recollection of hearing her say anything. I don’t think she opened her mouth. She looked bad. She was nervous and excited some. He was a little bit excited, a little bit out of patience. I had no trouble with him. . . . He said he wanted to get that eighty acres released, and wanted to settle up with this woman. I think I said there was no use in them making-damned fools of themselves. ‘You had better go home and settle up.’ I told them it could not be done; yes, sir. I didn’t see how it could be done. I didn’t notice that she
Mr. S. C. Huber testified, in behalf of the plaintiff, as follows:
My name is S. C. Huber. I reside in Tama. Am a lawyer. I remember the circumstances of a time that Mr. Arment brought his wife to her mother’s in November, 1907. Shortly prior to that occurrence, I had a conversation with Mr. Arment relative to his wife. Q. State to the court what that conversation was. A. In that conversation, which took place in my office — I think it was either two or three days prior to the 9th day of November — Mr. Arment told me that he and his wife could not live together 'anv longer, and that he wanted to make a settlement of their affairs, and that Mrs. Arment said that she wanted me to act for her; that he intended to give her an eighty, which would have to be cleared; and that he came to tell me this, so that I would know when they came— just so I would understand just what she wanted; that he would bring her down probably the next day. I saw Mr. Arment again on Saturday of the same week. He said that Mrs. Arment was down at the bank, and that he wanted me to come up there and draw the papers that he had talked with me about the day he was in before; that is, the 'day of that same week, but I would not attempt to say exactly what day it was. Q. Did you go up to the bank ? A. I did. I found Mrs. Arment and Mr. Bracken in the back room of the bank. She was sitting at the window near the end of the table, and was weeping. She seemed to be very nervous and
There is other evidence tending to corroborate the plaintiff’s claim that she- was compelled to leave 'home on the 9th of November, 1907; but we need not set it out. The plaintiff also testified, in effect, that when she left home prior to her first divorce it was at the instance of the defendant, and that he took her away against her protest. The defendant denies that he compelled the plaintiff to leave their home on the 9th' of November, and testifies that she left voluntarily, and he is corroborated in this, to some extent at least, by the testimony of two of their young daughters, who were at home at the time. But the defendant’s conduct at the bank, which he does not explain, and his subsequent efforts to have the plaintiff return on certain conditions named by him go to strengthen the plaintiff’s case. The fact that the two young daughters had lived with the defendant ever since the separation might tend to color their testimony in his interest, though ever so unconsciously done’. On the whole record, we reach the conclusion that the defendant compelled the plaintiff to leave him in No
The defendant at that time deserted the plaintiff, and, unless the statutory period of desertion was interrupted by good-faith endeavor on his part to have her return, free from improper qualifications and conditions, she is entitled to a divorce on the ground of desertion. Jones v. Jones, 95 Ala. 443 (11 South. 11, 18 L. R. A. 95); Starkey v. Starkey, 21 N. J. Eq. 135; 14 Cyc. 613; Bishop on Marriage and Divorce (5th Ed.) section 787. And such' good-faith action on his part must he entirely free from improper qualifications and conditions. Day v. Day, 84 Iowa, 221, Bishop on Marriage and Divorce, section 786.