Black v. Black, 5 Mont. 15

Black v. Black

5 Mont. 15 | Mont. | 1883

Wade, 0. J.

The district court, sitting as a court of chancery, has jurisdiction in all cases of divorce and alimony, and the like process, practice and rule of proceedings obtains as in other chancery cases. Upon a hearing the court has the power to decree a dissolution of the bonds of matrimony, upon proof of any one of. the causes mentioned in the statute. B. S. pp. 513, 514, secs. 508, 514.

The only departux’e fx’om the chancery practice and i’ule of proceeding upon the trial is that, if the defendant appears and denies the charges alleged in the complainant’s bill, the same shall be tried by a jury. B. S. p. 514, sec. 511. But the jury only tries the issue fox’med by the defendant’s denial of the chax'ge upon which the complainant asks for a divorce.

The court, sitting as chancellor’, is alone responsible for the decree as to alimony and the custody of the children. He may refer special issues to the jury to make findings as to these matters, but he is not bound by them, and he may set them aside, make other findings, and decree accordingly.

The complainant, in her bill, among other things, charges: “That the defendant John H. Black, on or about the loth day of September, A. D. 1881, at the county of Gallatin aforesaid, used to, of and concerning plaintiff, vile and abusive epithets, and then and there, without *22any just or reasonable cause, cursed plaintiff and accused her of being an unchaste woman, and also did then and there threaten the life of plaintiff.

“That said defendant, on or about the 28th day of December, A. D. 1881, at the county of Gallatin aforesaid, without provocation or justification, struck, beat, kicked and wounded the plaintiff, and also, then and there, choked plaintiff, and other wrongs and injuries then and there did to plaintiff; and further, that on the 7th day of January, A. D. 1882, in the county of Gallatin aforesaid, the said defendant kicked plaintiff out of the house where the plaintiff and defendant were then residing, and then and there' drove plaintiff from his house, and then and there rudely, forcibly and violently wrested plaintiff’s child from her arms, and refuses to return said child to the care or custody of plaintiff.

“ Plaintiff further alleges that she is now, and for several months last past has been, in delicate health, and that she is now pregnant with child by her said husband; that she is in destitute circumstances, and has no means of support.”

In a divorce case, as in any other, the proof must be authorized by the allegation. But in this record there is no evidence, and hence no question can arise thereon. The instructions to the jury are presumed to be based upon and applicable to the testimony until the contrary appearsv If, under any possible state of circumstances, the instruction might have been based upon competent evidence, the court will presume that such evidence was given. If, under any possible state of circumstances and evidence upon the issue joined, the instruction might have been proper, the court will presume that such evidence was produced upon the trial.

In this case, the defendant having denied the charge contained in the complainant’s bill, a jury came, and special issues were submitted. After the conclusion of the testimony, the court instructed the jury, among *23other things, as follows: “The first duty of the jury will be to consider and determine if the charge of extreme cruelty, made in plaintiff’s complaint against the defendant John H. Black, is sustained by the preponderance of the evidence; and if you should find that defendant John H. Black has not been guilty of extreme cruelty, then you need not consider the case further.”

The instruction limited and confined the consideration of the jury to the evidence of extreme cruelty as alleged and charged in the complaint.

Thereafter the jury returned into court, among others, the following special finding: “ First. Has the defendant John IT. Black been guilty of extreme cruelty towai'ds the plaixitiff, Alice B. Black ? Answer’. Tes.

“Frank Hill, Foreman.”

Under this instruction the finding must be interpreted to mean that the jury found the defendant guilty of extreme cruelty towards the complainant, as charged in the complaint. Proof of acts of cruelty not alleged in the complaint would have been incompetent, and there are no suspicions or conjectures contained in the record, or argument of counsel to the contrary, showing those based upon the giving of the following instruction: “ There is no allegation in the complaint of cruelty towards th'e plaintiff on the part of David or Samuel Black, yet from all the facts and circumstances in evidence before you, the jury may consider whether the taking' of plaintiff as his wife, to reside under the same roof and in one family with David and Samuel Black, constituted extreme cruelty or not.”

The testimony is not before us. What state of facts called forth this instruction we are not informed. If David Black, a brother of John H. Black, the husband, had entered into a conspiracy to defraud the respondent of her separate property, as charged in the complainant’s bill, and if the alleged acts of cruelty by the husband were parts of such conspiracy, and if taking the wife to *24reside under the roof of one of the conspirators was for the purposes of the cruelty alleged, then such taking was a part of the cruelty charged, and the instruction was proper. The jury were instructed to consider such taking of the wife to the house of the brothers of the husband “under all the facts and circumstances in evidence.” What those facts and circumstances were we do not know, but as they might have been such as to render the instruction legitimate and proper, in the absence of the testimony we must presume that the instruction was based upon the evidence, until the contrary appears.

2. The question of alimony was for the judge sitting as chancellor. As to this part of the decree the chancellor is alone responsible. He may, as he did, submit special issues to the jury as to the property of the defendant, but he may entirely disregard the findings of the jury and make those of his own and decree accordingly.

In arriving at the amount of the alimony to be allowed the wife, it was legitimate and proper to ascertain the amount of her separate property that had passed into the hands of the husband or others for his use; and if, as found by the chancellor, the defendant David P. Black received of the complainant’s separate estate and converted to his own use, and for which he had in no wise accounted, the sum in value of $680, it was competent for the court to decree the payment of this sum to complainant as part of her alimony.

Whether this finding was based upon the testimony in support of the allegation of a conspiracy by her husband and said David P. Black to defraud the complainant or not, yet if the said David P. Black had received and converted to his own use the separate property of the complainant after a decree of divorce, and her husband having no interest in the property, he who had thus converted the property ought to be compelled to pay its value to its rightful owner. But this is not one of the claims *25or demands upon which, under our statute, interest can be computed, unless there is an averment in the complaint that the money has been withheld by reason of vexatious delay.

3. In a case of this kind the costs are within the discretion of the court. The defendants answered. jointly and made a joint defense. David P. Black, one of the defendants, joined with the husband in denying the charges contained in the complainant’s bill, and contested her right to a divorce and to alimony. The answer of David P. Black, no less than that of her husband, made it necessary for the complainant to employ counsel. If a defendant voluntarily joins with the husband in contesting the wife’s right to a divorce, and thereby compels the wife to employ counsel, and a decree of divorce is obtained, he ought to be jointly liable for the attorneys’ fees that he makes necessary by reason of his own act. There is sufficient in the record to show that David P. Black was the active party in attempting to defeat a divorce, and apparently for the reason that he had converted property of the wife to his own use, which, if he could defeat the divorce, he might not be compelled to account for. If one unnecessarily intrudes himself into a divorce case, and contests a wife’s right to a divorce, for purposes of his own, and a divorce is granted notwithstanding, he ought to be compelled to pay the expenses consequent upon such intrusion.

The decree is so modified that the sum of $680 ordered and adjudged to be paid by David P. Black to complainant shall not bear interest until the date of the rendition of said decree, and when so modified the decree is in all respects confirmed.

Judgment modified and affirmed.