Farr v. Farr

34 Miss. 597 | Miss. | 1857

Fisher, J.,

delivered the opinion of the court.

This was a bill filed by the appellee on the chancery side of the Circuit Court of Hinds county, for a divorce from the bonds of matrimony, on the ground of adultery, alleged to have been committed by her husband, the appellant. The first error assigned relates to the action of the court below in overruling the appellant’s demurrer to the bill; and as this error, if it shall appear to have been well assigned, will be decisive of the case, it will be first considered. The bill appears to have been filed on the 27th day of August, 1855. The marriage is alleged to have been solemnized on the 11th day of March, 1847. The bill then proceeds to charge that at various times and upon various occasions since the marriage, the defendant has proven unfaithful to his marriage vow, in this: that he has been guilty of repeated acts of adultery with a 'servant-woman of the complainant, and with other females. It is objected that this allegation is too vague and uncertain to entitle the complainant to maintain her bill, inasmuch as it would be next to impossible for the defendant, by reasonable diligence, to prepare himself to meet such an allegation.

The rule appears now to be well settled in this class of cases, that the charge must be made with reference to some particular time and place, that the defendant may be able not only to anticipate the proof which may be made against him, but that he may know to what particular time or place to direct his own proof. This allegation puts in issue the defendant’s course of .conduct during the whole time of the matrimonial connection, a period of more than eight years, and it is not to be presumed that he could, by the use of reasonable diligence, prepare to meet proof that might be made against him by witnesses having this latitude. The rule that certainty to a common intent must exist in pleadings, applies as well to pleadings in equity as at law, the reason in both instances being the same, — to inform the adverse party with sufficient precision of the charge made against him, and to enable the court to pronounce the proper judgment, if the truth of the pleading should be established. We are, therefore, of opinion that this bill is too vague and uncertain as to time and place and other circumstances to require an answer, and that the demurrer should have been sustained.

Again, it is said that the name of the person with whom the adultery is alleged to have been committed should have been set forth in the bill. Perhaps in many cases greater certainty would be promoted by observing this practice, but while the practice might in this instance have been followed, and the name of the servant given, there are, nevertheless, good reasons why, in most cases, a different rule should prevail. Persons who are strangers to the controversy, and whose characters would suffer more or less, should not be implicated when they have no opportunity to be heard, unless reasonable certainty in the pleading could not be otherwise attained. As a general rule, it will be sufficient to set forth the time, place, and particular circumstances of the defendant’s guilt, without introducing private scandal, which might subject the party pleading to an action for damages, in consequence of the injury thus done to the character of a third party. Reasonable certainty is all that is required, and the court will favor a rule which can attain this end, and at the same time preserve its records from unnecessary scandal.

We, therefore, think that this cause of demurrer is not well assigned. The court, however, having erred as to the first cause of demurrer, the decree must be reversed.

Decree reversed, demurrer sustained, and bill dismissed.