156 P. 277 | Or. | 1916
Opinion by
The evidence shows that the parties were married in Queens (now Nassau) County, New York, November 19, 1868, and nine children were born of that union. The pleadings admit and the evidence shows that on December 29, 1906, the plaintiff commenced a suit for divorce in Klamath County, Oregon. The defendant then was, and ever since has been, a resident of New York, and the summons was served by publication. She filed an answer in that suit, and made application for an allowance of suit money. The court ordered him to pay $125, but upon his refusal to comply therewith the suit was dismissed without prejudice. The plaintiff on July 30, 1907, commenced another suit for a divorce in Multnomah County, in this state, and the defendant again appeared by counsel and asked for suit money. The court required him to pay $75 for the purpose, but he refused to obey the order, whereupon the suit was dismissed, and a judgment rendered against him for the costs, which he has not paid.
The depositions referred to state that, though the plaintiff moved to a hotel in Brooklyn, New York, about the time stated in the complaint, he frequently returned to their home until about the year 1896, when he took his books, etc., left, and never came back; that he gave the defendant the home mentioned, which dwelling she was obliged to mortgage to raise for bim $3,000; that, being unable to pay the interest on that sum of money, she was compelled to sell the real property for $3,500, and after discharging the indebtedness there remained a little more than $100, the greater part of which she gave him; that after the sale of their home the defendant rented the house for a small sum, and she and her children occupied the premises for a short term; that while she was thus a tenant the plaintiff visited her, took all his personal goods, and left her and their children in destitute circumstances, while he apparently had abundant means and roomed at a fashion
The depositions of the defendant and her children, taken pursuant to a commission and upon written interrogatories, were filed in the court below before this cause was tried, and there was no opportunity to controvert the plaintiff’s testimony in respect to the sale of his rugs to a competitor or the destruction of the store fixtures. A careful examination of the entire testimony convinces us that, instead of the defendant deserting the plaintiff and refusing to live with him, he voluntarily abandoned her and the children, when they were destitute and he was able to aid them, but neglected to do so, except in the matter of the partial education of some of the children, and occasionally donating to them small sums of money. The plaintiff is not entitled to a divorce.
The decree is therefore reversed and the suit dismissed. - Reversed. Suit Dismissed.