78 W. Va. 708 | W. Va. | 1916
Plaintiff seeks a divorce from the bonds" of matrimony, alleging as the sole and only ground therefor, that defendant
Defendant answered denying willful and deliberate abandonment and desertion without cause, and alleging cruel and inhuman treatment of her by plaintiff as good cause for her leaving him, and specifying numerous instances thereof, and professing her willingness to return to plaintiff’s home, if she can be assured of plaintiff’s proper treatment of her, and of the employment of a servant, or some one to protect her against his abuse, and her unwillingness to return upon any other conditions.
To this answer plaintiff replied by special plea alleging former adjudication adverse to defendant’s contentions, of all matters alleged by way of defense to his bill, in a prior suit brought by her against him, in which she is alleged to have pleaded the very same matters of cruel and inhuman treatment as grounds for divorce from bed and board and for alimony, and fvith which plea he exhibited a complete transcript of the record in her cause, including bill, answer, and all the evidence and decrees and proceedings therein.
Upon the filing of said plea defendant ■ was permitted to file what she styles her cross-bill and additional or supplemental answer to plaintiff’s bill of complaint, as well as to his so called special plea to her oi’iginal answer, and in which she alleges that before and at the time of their marriage plaintiff falsely, maliciously, and deceitfully represented to her that he was competent to produce offspring; was capable physically of fully consummating the marriage, well knowing the desire of defendant for offspring, and 'that this was the consideration for her entering into the mazuiage contract with him; but that contrary to his representations plaintiff knew at the time of their marriage that he was incurably impotent and incapable of consummating said marriage and that thereafter he made no effort to consummate the same, and had wholly failed and refused to do so to her great grief and shame. She alleges knowledge on his part of his physical impotency at the time of the marriage, and of her ignorance thereof then and for a long time thereafter. Upon these new
To this additional or supplemental answer and cross bill plaintiff replied by special plea objecting to the filing thereof, as an entire departure from her original answer, and because as alleged in his first special plea the matters set up therein were res adjudícala by the decree dismissing her bill against him in said former suit; and charging that in her evidence taken in support of her said former bill respondent had attempted to prove the very same matters set up in her said cross-bill and answer in support thereof; and also exhibiting again a complete copy of the record of said cause as a part of said special plea.
To this special plea, as to the former, defendant excepted and demurred, which exceptions and demurrers were in each-instance ■ overruled. No general replication to either of defendant’s answers seems-to have been interposed by the plaintiff. The only deposition taken was that of plaintiff filed in support of his bill. The decree appealed from denied plaintiff the relief prayed for and dismissed his bill; it also denied defendant any relief upon her cross-bill and dismissed the same. From this decree plaintiff has áppealed, and defendant has cross assigned error in dismissing her cross-bill.
The first question presented is, has the plaintiff established by legal and competent evidence the willful abandonment and desertion of him by defendant for the requisite period entitling him to the relief prayed for? The only evidence in the case is plaintiff’s own deposition and a slight reference therein, on cross-examination, and the re-direct examination, to his evidence in the said former suit, as shown by the record thereof exhibited -with his special pleas, relating to his supposed admissions therein, that if'defendant had not left him he intended to have'left her.
Willful desertion, as our books say, consists, first, of the breaking off of matrimonial cohabitation; and, second, an intent in the mind to desert. Tillis v. Tillis, 55 W. Va. 198; Burk v. Burk, 21 W. Va. 445. But willful desertion implies desertion without justifiable cause. If one spouse deserts the
Evidently plaintiff was relying upon the record filed as an exhibit with his two special pleas and upon the evidence of the parties taken therein. But assuming that that record and the decree in that case constitute an estoppel upon the defendant as to the matter of defense set up in her answer, this is a divorce proceeding, and the plaintiff would not be relieved from the burden of making out his case by competent proof. Besides that record was not offered as evidence on the matters set up in the bill; it was merely exhibited with plaintiff’s special pleas to defendant’s .answer and cross-bill. And if we could look into that record we wo aid find that the bill in that cause was for a decree « mensa, based on the alleged cruel and inhuman treatment of plaintiff by defendant. The decree in that case might estop defendant in this case as to the matters litigated; but is it conclusive upon her that she deserted or abandoned her husband without justifiable causes ? We think not, and we think the authorities so hold. Patrick v. Patrick, supra; Wendling v. Wendling, 134 N. Y. S. 55. The issues were not the same in both eases. 1 Nelson on Divorce & Separation, section 555, citing Umlauf v. Umlauf, 117 Ill. 580, and Wahle v. Wahle, 71 Ill. 510; Stewart v. Stewart, (Md.) 66 Atl. 36; Schwab v. Schwab, 93 Md. 383; Foxwell v. Foxwell, (Md.) 84 Atl. 552; Cook v. Cook, (N. C.) 80 S. E. 178; Lee v. Lee, (Okla.) 132 Pac. 1070. Then too’ we must not overlook that the plaintiff substantially admits in his dep-
For the foregoing reasons we cannot say that there is any reversible error in the decree dismissing plaintiff’s bill, and we are of opinion 'that the same should be affirmed.
Now with respect to defendant’s cross-bill. She predicated her right to a decree of divorce a vinculo upon the alleged impotency of plaintiff. But she offered no proof, and of course could not have been granted a decree, although plaintiff failed to plead Thereto .except by the plea of res adjudic-ata. It does not clearly appear upon what 'ground the cross-bill was dismissed. But as the court sustained the plea of former adjudication, we think it must be assumed that the decree was based upon said plea, supported by the record of the former decree pleaded, and this being so, it was useless for .'defendant to undertake to sustain her bill by evidence. The cross-bill unless, as is suggested by plaintiff’s counsel, it is inconsistent with her original answer filed, or came too late, presented a good case for relief.. This plea was objected to, excepted to, and a demurrer thereto interposed by. defendant, ' all of which were overruled. The ruling of the court on this plea is not specifically.assigned as error by defendant in this court. It is contended, however, that the defendant should have been granted' a divorce, and it is intended no doubt to thereby present the question. ... '
The decree in the former suit of defendant against plaintiff, being a suit for divorce.a mensa, and not a vinculo, and founded on another and different provision of the statute, could not upon principles enunciated in the authorities above cited, conclude the defendant in a suit for divorce a vinculo o.n grounds of impotency. The plea does not allege that this
But it is said the cross-bill is inconsistent with defendant’s original answer to the bill, and was filed too late, invoking the general rule respecting the filing of amended answers. But we do not think that rule applies to a cross-bill. Martin v. Martin, 33 W. Va. 695, 701; Loar v. Wilfong, 63 W. Va. 306, 315, and cases cited. And it is also suggested that defendant should have pleaded the cause of divorce a vinculo in her original suit for divorce a mensa. But impotency is not made the ground for divorce a mensa, and we do not think defendant in that suit was bound to sue for- absolute divorce. If she had grounds for a decree of separation, as she thought, she could at hej’ will pursue that remedy; and if afterwards she elected to do so she might sue for absolute divorce, based on any one. of the grounds given by the statute, without being concluded by the decree denying her relief in her first suit. Some courts, as in Bartlett v. Bartlett, 113 Mass. 312, Morrison v. Morrison, 142 Mass. 361, Viertel v. Viertel, (Mo.) 75 S. W. 187, seem to hold, however, that if at the time of a suit for divorce a mensa, causes for divorce a vinculo were known to plaintiff, he would be thereafter precluded and estopped by the decree denying relief in the former suit, from instituting a new suit on grounds for absolute divorce; also, that it would be necessary in such subsequent suit to allege and prove absence of knowledge at the time of the first suit of the grounds for absolute divorce alleged in the subsequent suit. But the courts of other states, some of which are cited above, and which we think the better rule, hold differently, and that the decree in the former suit is no bar to the subsequent suit.
Our conclusion based on these grounds is that the circuit court erred in not sustaining defendant’s 'demurrer to the-special plea to the cross-bill, and ruling the plaintiff to answer-.the same; and in not giving defendant opportunity if she-could do so to make out hér case by proof. We, therefore, reverse the decree dismissing said cross-bill, and remand the-cause with direction to the circuit court to sustain the demurrer of defendant to said, special plea, and require plaintiff to further reply to or answer said cross-bill.
Affirmed in part. Reversed in part. Remanded.