79 Ind. 363 | Ind. | 1881
— This suit was commenced by the appellee, on the 14th day of October, 1879, to obtain a divorce from the' appellant, her husband, the custody of their infant son, and' alimony in the sum of $5,000. The appellant appeared, and such proceedings were had in the cause as that, on the 29th day of January, 1880, the issues joined were tried by the court,, and a finding was made for the appellee, that the allegations of her complaint were true, and entitled her to the relief therein demanded, and the court assessed her alimony in the-sum of $300.00, and the amount necessary to maintain the infant son of the parties at the sum of $1,200. Thereupon the-court rendered a judgment and decree dissolving, annulling' and setting aside the marriage contract, theretofore entered into and then subsisting between the said parties, and for the payment of said alimony and costs, and requiring the appellant, to pay the appellee for the support and education of their infant son the sum of $100 on the first day of February, in each year, during the period of twelve years.
It appears from the record of this cause, that the appellee’s complaint was filed in term time, to wit, during the September term, 1879, of the court below, with the following endorsement thereon, signed by her attorney, to wit: “ The clerk will issue summons in the within cause, returnable on the 24th of October, 1879, and set said cause down for trial on said day.”
Neither the summons nor the return thereof appears in the transcript before us, and it does not appear that there was any appearance or any action had in the cause until the January term, 1880, of said court. On the 10th day of that term, to wit, on January 15th, 1880, the appellant, by his counsel, entered a special appearance, and moved the court to quash the summons issued in said cause, which motion was overruled, and to this ruling he excepted, and filed his bill of exceptions.
The first point made by the appellant’s counsel, in his brief of this cause, is that the act of March 6th, 1877, amending section 315 of the civil code of 1852, in regard to process or publication in civil actions, is not applicable to suits or proceedings for divorces. In said section as amended, it was-provided that the plaintiff might, when he filed his complaint before or during any term of the court, fix the day during such term, by endorsement thereof on his complaint, upon which the defendant should appear, which day, when so fixed, should be stated in the summons issued, and the action should be docketed accordingly. It was further provided in said amended section, that if the summons should be personally served ten days before the day so fixed, or if publication should be made for three weeks, thirty days before such day, such action should thereupon stand for issue and trial at such term, and the court should have jurisdiction to hear and determine the same, as if such summons had been served or such publication made before the first day of the term. Acts of 1877, Reg. Sess., p. 105. This amended section was substantially re-enacted, with some additional provisions, as section 367 of the civil code of 3 881, and is now section 516 of Revised Statutes of 1881. We agree with the appellant’s counsel in the opinion that the amended section 315 had and has no application whatever to suits or proceedings for divorces. Such suits or proceedings were governed and controlled by the provisions of the act of March 10th, 1873, “regulating the granting of divorces,” etc. 2 R. S. 1876, p. 324.
In section 13 of said act, it was provided as follows: “The cause shall stand for issue and trial at the first term of the court after the summons has been personally served upon the defendant ten days, or publication has been made thirty days before the first day of such term.” 2 R. S. 1876, p. 329. This is now section 1037 of the Revised Statutes of 1881, p. 198. But we do not agree with appellant’s counsel in his conclusion, that, because the summons in this-case was issued in.
The appellant’s counsel further insists, that the summons ought to have been quashed, and the suit dismissed, for the reasons assigned in his written motion therefor. These reasons were, in substance, as follows:
1. Because the affidavit, filed with appellee’s complaint, was sworn to before a notary public, and not before the clerk of the circuit court, as contemplated by the statute;
2. Because said affidavit was dated on April 27th, 1879, nearly six months prior to the date of the filing of said ■ complaint and affidavit; and,
3. Because there was no affidavit filed with appellee’s complaint, showing that she was a resident of Hendricks county, Indiana, at the time she commenced this suit.
In discussing the questions arising under his written motion to quash the summons and dismiss the suit, appellant’s counsel founds his argument upon the provisions of the last sentence of section 7 of the divorce act of March 10th, 1873, 2 R. S. 1876, p. 326; section 1031 of Revised Statutes of 1881. This sentence reads as follows: “And the plaintiff shall, with his petition, file with the clerk of the court, an affidavit subscribed and sworn to by himself, in which he shall state the length of time he has been a resident of the State; and stating particularly the place, town, city or township in which he has resided for the last two years past; and stating his occupation, which shall be sworn to before the clerk of the court in which said complaint is filed.” It is claimed by counsel that these provisions of the statute are mandatory, and we are of the opinion that they are so far imperative as that there should be, in every case, a substantial compliance with their requirements. Manifestly, the legislative intentdn .the enactment of these provisions was to limit the operation of the statute to bona fide residents of the State, and to restrain and prevent the procurement of divorces by non-residents, through fraud or imposition practiced on the courts. Such substantial com
In the case now before us, there was certainly no error, prejudicial to the appellant’s rights or interests, in the proceedings of the court, either in overruling his motion to quash the summons and dismiss the suit, or in permitting the appellee to file with her complaint a substituted affidavit. In our opinion, any other action on the part of the court, under the circumstances of this case, would have been error so gross as to have amounted practically to a denial of justice. The appellant’s written motion to quash the summons, and dismiss ■the suit, was correctly overruled. .
The next error complained of, in argument, by appellant’s counsel, was the decision of the court in overruling his demurrer to appellee’s complaint. It was alleged by appellee, in her complaint, that, at all times since her marriage to appellant, she had performed all her duties as his wife, and had at all times been, and then was, ready and willing to perform her duty as a wife toward the appellant; but she averred that appellant had broken his marriage contract and had treated appellee in a cruel and inhuman manner, in this, that, in June, 1878, the appellant without cause left and abandoned appellee and her infant child, and absconded from this State to some distant, and to her unknown, State or territory, and without any explanation, excuse, or correspondence with her, left her dependent upon herself and her friends for the support of herself and said infant child; that, from that time to the commencement of this suit, appellant had not provided any means of support for either her or said child; that, during said time, appellee had been seriously ill and greatly in
In section 8 of the divorce act of March 10th, 1873, which is section 1032 of the Revised Statutes of 1881, the causes for which divorces may be decreed are specified, and it is declared that they shall be decreed for “ no other ” causes. It is manifest from the allegations of appellee’s complaint or petition, in this case, that she relied for a divorce upon the fourth and fifth statutory causes therefor. These causes were as follows:
“ Fourth. Cruel and inhuman treatment of either party 'by the other.
“ Fifth. Habitual drunkenness of either party or the failure of the husband to make, reasonable provision for his family.”
The latter part of this fifth cause is repeated as the sixth statutory cause for a divorce, as follows: “ Sixth. The failure of the husband to make reasonable provisions for his family, for a period of two years.”
"We are of the opinion that the allegations of appellee’s complaint were sufficient to constitute a cause of action in her behalf for a divorce from the appellant, and to withstand his-demurrer thereto for the want of facts, under the fourth statutory cause for a divorce. If it be true, as alleged, and the-demurrer admits its truth, that the appellant without cause, and within three years after his marriage to appellee, abandoned her and her infant child, absconded from the State, and without explanation, excuse or even correspondence with her, left her dependent upon her own labor and the charity of friends for the support of herself and child, it may well be said, as it-seems to us, that his “ treatment ” of her was sufficiently “ cruel,” within the meaning of the statute, to entitle her to a decree of divorce. To a sensitive, spirited woman, such treatment would be far more cruel and inhuman than the infliction of corporal.
In the recent case of Graft v. Graft, 76 Ind. 136, it was held by this court, and correctly so, as it seems to us, that false charges of adultery, publicly made by the husband against his wife, were cruel and inhuman treatment of the wife, within the meaning of that expression as used in the statute, such as authorized the trial court to grant her a divorce from the husband on the ground of such treatment. To the same effect is the case of Shores v. Shores, 23 Ind. 546. The appellant’s treatment of the appellee, as alleged in the complaint in this case, is fully as cruel and inhuman as the treatment of the wives in the cases cited. For here the appellant abandon's his wife without cause, and leaves her to support herself and child, and to endure the sneers and scoffs of others as to her unfortunate condition as best she can. The court did not err, wo think, in overruling the demurrer to appellee’s complaint or petition, for the want of sufficient facts therein.
The other ground of demurrer was, that the court had no jurisdiction of the subject-matter of the suit. This ground
It is earnestly insisted by the appellant’s counsel, that the finding of the court was contrary to law, and was not sustained by sufficient evidence; but his argument is based upon the theory, that, even if every allegation of the complaint were strictly true, the appellee would not be entitled to a divorce, under the law. We have reached the conclusion, however, that appellee’s complaint stated a cause of action, entitling her to a divorce from the appellant, under the law; and the evidence in the record, as we read it, tended to establish this cause of action more strongly in her favor than it was stated in her complaint. For the evidence not only showed the appellant’s treatment of the appellee to be fully as “ cruel and inhuman ” as she had stated in her complaint; but it also showed, that the effect of such treatment was to prostrate her with serious sickness for a long time.
Appellant’s counsel claims that the trial court erred in the admission of evidence of the entire failure of the appellant to provide for the support of the appellee and of her infant child. We think, however, that this evidence was admissible as tending to prove the appellant’s treatment of the appellee to have been cruel and inhuman.
' We can not disturb the court’s allowance of alimony, or its allowance for the support of the appellant’s child. In Powell v. Powell, 53 Ind. 513, it was said of such allowances: “ These matters are both, of necessity, largely within the discretion of the court below; and the abuse of that discretion must be very
Appellant’s counsel concedes, in his brief of this cause, that the questions presented by the alleged error of the court, in overruling the motion in arrest of judgment, are precisely the same as those which were presented by the supposed error of the court, in overruling the demurrer to the complaint. Upon those questions, we have already said all that we desire to say. Besides, the record shows that the motion in arrest was not made in this case, until five days after the rendition and entry of the judgment. This court has held, that a motion in arrest must be made before, and can not be made after, the rendition and entry of the judgment. Hilligoss v. The Pittsburgh, etc., R. R. Co., 40 Ind. 112.
We have found no error in the record of this cause, requiring the reversal of the judgment below.
The judgment is affirmed, at the appellant’s costs.
Woods, J., dissenting, says: I do not think the complaint shows a cause for divorce, on the ground of cruel treatment. The statute has expressly provided for divorce, on the ground of abandonment and failure to provide, which must be for two years; and we have no right to call it by another name, and so reduce the time of abandonment below the period fixed in the statute.