30 Mont. 36 | Mont. | 1904
prepared the following opinion for the court:
Appeal from judgment and order overruling motion for new trial.
The action was commenced by John B. Bordeaux, as plaintiff, against Ella F. Bordeaux, as defendant, for a divorce on the ground of desertion, by filing a complaint on January 26, 1899. Defendant answered, denying all the material allegations, and, by way of “recrimination, defense, counterclaim and cross-complaint,” set forth a claim for a divorce on the ground of desertion and extreme cruelty. To this answer plaintiff filed a replication denying all the material affirmative allegations. On February 25, 1899, plaintiff filed an amended complaint, in which was set forth desertion as one cause of action, and, as another, several specific, and many general, acts of adultery on the part of the defendant. Further reference to this first amended complaint is immaterial, because it was again amended as hereinafter set forth.
On March 3, 1899, a second amended complaint was filed, which consisted of two causes of action: First, desertion; and, second, adultery. The specific, adulterous acts set forth were that the defendant committed adultery with an unknown person on. the 1st day of September, 1891, in the “Old Owsley Building;” also with Lyman A. Sisley on the 23d day of September, 1897, “at a house on the west side of Missoula Gulch, which was. then in an unfinished condition, and is now numbered 825 West Broadway street, in Butte City;” also with Lyman A. Sisley on the 2d day of October, 1897, “on the west side of Missoula Gulch, in a new building, which was then in an unfinished condition, and is now numbered 825 West Park street, Butte City;” also with Lyman A. Sisley during the month of August, 1897, “in a lodging house on the east side of Main street, in Butte City, * * * known as and called the ‘Réd Boot Lodging House’;” also on the 30th day of November, 1896, with Lyman A. Sisley, “in room number 27 in what was then, and is now, known as the ‘Weyerhorst Block’;” also with Lyman A. Sisley on or about the 2 Stir day of November, 1897, at plaintiff’s residence. This complaint contains some five or six other allegations, charging adultery generally, at different times and places, and with Lyman A. Sisley, or persons, unknown.
Defendant demurred to this second amended complaint. This demurrer was overruled. Defendant then filed her answer, denying each' and every material allegation of the complaint, and alleging, “by way of recrimination, defense, counterclaim and cross-bill,” as a. ground for divorce, first, the desertion of the defendant; second, his extreme cruelty. To the affirmative matter set forth in this, answer, plaintiff filed a replication denying all the material allegations thereof. Upon these pleadings the cause came on for trial on the 16th day of August, 1901, before the court and a jury.
We are of the opinion that the court abused the discretion vested in it, in refusing to make a larger allowance for “suit money,” and in refusing to consider the application as to' attorney’s fees. As said by the Supreme Court, of California in the case of Sharon v. Sharon, 75 Cal. 1, 48, 16 Pac. 345, 366: “The discretion of the court is a legal discretion, to be reasonably exercised. 'Abuse of discretion’ in making such orders does not necessarily imply a willful abuse or intentional wrong. In legal sense, discretion is abused whenever, in its exercise, a court exceeds the point of reason, all the circumstances before it being considered.”
The defendant stood accused of various acts of adultery— one of the most heinous offenses that could be charged against
"We are therefore satisfied that the alloAvance made Avas so grossly inadequate, under all the circumstances, that it Avas, in effect, a denial to her of the funds necessary to be expended in the proper preparation and presentation of her case toi the court.
Section 160 of the Civil Code provides that divorce must be denied upon a showing of recrimination.
Section 170 of the Civil Code defines “recrimination” as “a showing by the defendant of any cause of divorce against the plaintiff.”
By Section 132 of the Civil Code, extreme cruelty and desertion are grounds of divorce.
As above stated, the answer set forth, “by way of recrimination,” these two grounds of divorce as against the plaintiff. The jury found specially against defendant on both grounds. The court set aside these findings, and denied defendant’s application to make findings on the other issues in the case. The conclusion resulting from this action of the court is apparent, viz., that no findings were made upon the recriminatory' allegations in the answer. In such case the judgment cannot be maintained. These issues were material, and the findings must cover all matters at issue made by the pleadings. (Cassidy v. Cassidy, 63 Cal. 352.)
The above cited case is peculiarly in point. The action was by the husband for divorce. The wife denied the allegations of the complaint, and set up the defense of extreme cruelty. The court found that all the material allegations of plaintiff’s complaint were true, and rendered judgment for the husband. No finding was made by the court upon the issues tendered by the wife as to cruelty. The court say: “It is well settled in this state that the findings must respond to1 all the material issues made by the pleadings;” (citing Swift v. Canavan, 52 Cal. 417; Billings v. Everett, 52 Cal. 661; Phipps v. Harlan, 53 Cal. 87.) That court held that the defendant may allege and .prove facts
If these issues had been found in favor of defendant, plaintiff would not have been entitled to a divorce. (Nagel v. Nagel, 12 Mo. 53; Church v. Church, 16 R. I. 667, 19 Atl. 244, 7 L. R. A. 385 ; Ribet v. Bibet, 39 Ala. 348; Pease v. Pease, 72 Wis. 136, 39 N. W. 133; Reading v. Reading, (N. J. Ch.) 5 Atl. 721; Conant v. Conant, 10 Cal. 249, 70 Am. Dec. 717; Estill v. Irvine, 10 Mont. 509, 26 Pac. 1005.)
We are aware that the doctrine of implied findings prevails in this state, but such doctrine cannot apply to this case. The jury made special findings upon the issues raised by defendant’s answer, and the court below set them aside on its owm motion.
If any findings upon these issues are to be implied from the above stated facts, such findings would be contrary to those of the jury and in favor of the defendant, thus defeating the judgment for plaintiff.
Therefore, wre must conclude that the judgment must be reversed on this ground. •
Section 163 of the same Code defines condonation as being “the conditional forgiveness of a matrimonial offense constituting a cause of divorce.”
Section 164 provides: “The following requirements are necessary to' condonation: (1) A knowledge on the part of the injured party of the facts constituting the cause of divorce. (2) Reconciliation and remission of the offense by the injured party. (3) Restoration of the offending paity to all marital rights.”
The verdict of the jury in this case finds the defendant guilty of adultery on the 23d day of December, 1897, and at other
Under these circumstances, and under the authorities, it is very clear that the plaintiff condoned the offenses of adultery AA'hich he had charged in his complaint, and therefore Avas not entitled to a decree of divorce. (Marsh v. Marsh, 13 N. J. Eq. 281; Delliber x. Delliber, 9 Conn. 233; Turnbull v. Turnbull, 23 Ark. 615; Horne v. Horne, 72 N. C. 530; Farmer v. Farmer, 86 Ala. 322, 5 South. 434; Phillips v. Phillips, 91 Ga. 551, 17 S. E, 633; Todd v. Todd, (N. J. Ch.) 37 Atl. 766; Tilton v. Tilton, 16 Ky. Law Rep. 538, 29 S. W. 290.)
In Marsh v. Marsh, supra, it is said: “Condonation may be implied if the husband, after reasonable knoAvledge of the infidelity of his wife, continues to admit her as the partner of his bed. Poynter on Mar. & Día1-. 232. * • * * Reasonable knovA’ledge may be said to have been liad when information of a fact is given by credible persons, speaking of their oaaui knowledge, particularly if the same facts be afterwards proved, and
The adultery charged in the complaint in the foregoing action was alleged to have been committed from March to. July, 1857, and the 'act more especially relied upon was charged to have occurred the 23d day of March, 1857. The plaintiff was told all about this prior to July 4, 1857, by a. witness whom he afterward put on the stand to prove it, and suit was commenced January 6, 1858, and, during' all 'the time between receiving knowledge of the act and commencing the suit, plaintiff continued to cohabit with his wife as if nothing had occurred. They lived in the same room in a boarding house. The court, in regard to these facts, uses the following language: “It appears, then, as early as July 4, 1857, the petitioner had not only probable knowledge, but, if his witness is truthful, certain information, of his wife’s guilt. He had the very information from the lips of the same witness upon which he asks this court to pronounce liis wife guilty. He, at least, must be presumed to have deemed the witness credible (for lie has placed her on the stand), to sustain his case.”
In Turnbull v. Turnbull, supra, the court say: 'Hie liad the right to forgive her or not, as he saw fit, but, having once forgiven, it is not his privilege to retract his pardon, to subserve the purposes of his. passion, liis caprice, or his interest. He has passed an act. of oblivion which heals all, and, in the eyes of the law, for all time to come.”
In Horne v. Horne, supra, the Supreme Court of North Carolina uses the following vigorous language: “A husband who admits his wife to conjugal embraces after he knows that she has committed adultery is looked on as a disgraced man, ;a cuckold, a beast with horns,’ ”
In Todd v. Todd, supra, the court uses the following language: “If a man — a stranger — and a woman had occupied the same room and the same bed for a whole night, would any murt accept his statement that he did not take off his clothes
In Tilton v. Tilton, supra, Chief Justice Pryor says: “The judgment in this case against' her, establishing a want of chastity, has taken from- her a hitherto pure and spotless character, that took her, as a welcome guest, to her neighbors, that she might ply her needle from day to day, and enjoy the associations of the best and purest women of the village. The facts of this record show this proceeding by "the husband to be a merciless assault- upon women and virtue, and brand the appellant with infamy and disgrace, when it is apparent, even if the wife was guilty, that the husband sustained his relations with her with a full knowledge o-f what he claims to be the facts evidencing her guilt, and therefore the chancellor should have dismissed his petition.”
We cannot refrain Horn saying that the record discloses in many instances a most reckless disregard for the truth on the part of some of plaintiffs witnesses, and also a character to some of plaintiffs witnesses which is not enviable, to say the least.
We have directly considered only three important errors upon which the case must be reversed. There are over 100 errors assigned in the brief of appellant, and, after an examination of all these errors and the record, we are of the opinion that a great majority of them are such that if considered would be sufficient to reverse the judgment and order appealed from, but inasmuch as they all pertain, either to the introduction or rejection of testimony, or matters of mere practice which may be avoided on another trial, and as the judgment and order must be reversed and a new trial granted, we do not deem it necessary to further refer to these various errors.
We advise that the judgment and order appealed from be reversed, and the case remanded for a new trial.
Bor the reasons stated in the foregoing opinion, the judgment and order appealed from are reversed, and the cause remanded.