28 Ind. 291 | Ind. | 1867
Lead Opinion
— William Hedrick filed his complaint against his wife, Rebecca, for divorce, alleging abandonment.
The defendant answered by the general denial and by a cross-complaint, averring cruel and inhuman treatment and adultery, and charging that the plaintiff is possessed of a large estate, both real and, personal, to-wit, of the value of $16,000, his land consisting of some seventeen hundred acres, situated in Tipton and Madison counties-Prayer for divorce, alimony, and the custody of the children.
The plaintiff replied by the general denial. The issues of fact were submitted to a jury. Verdict for the plaintiff'; and, in answer to interrogatories, the jury found that the defendant had no just cause for abandoning the plaintiff; that the defendant is the best calculated to take care of the children; and to the question “what amount of property has the plaintiff?” the jury answered, “$13,000 worth in real estate.” After verdict, and before final decree, Judge West succeeded Judge Gooding. The court rendered a final decree Of divorce, granting the custody of one child to the plaintiff", and the other to the defendant, and allowing alimony to the wife in the sum of $3,500, to be paid as follows: $500 in six months from the date of the decree;
A bill of exceptions shows that there was no evidence heard by Judge West at the time he rendered the final decree. ■ There is no bill of exceptions containing the testimony given on the trial. It is claimed that Judge West had no judicial knowledge of the evidence given on the trial at the time his predecessor was in office, and that the court erred in giving the wife alimony without hearing further testimony. The cross-complaint averred the facts upon which the claim for alimony was based. The answer of the jury to one of the interrogatories put to them, shows that the evidence had been introduced on the trial. The change of judges did not change the court; for all judicial purposes that remained identical.
It is claimed that the amount allowed for alimony is too large. The evidence given on the trial is not before us. The record, however, does show that the defendant had lived with the plaintiff long enough to have two children; that the plaintiff" was worth, in real estate, some $13,000; the defendant was charged with maintaining one of the children. Under such circumstances, in the absence of the evidence, we cannot say that the allowance was unreasonable. Under the statute, the court had the power to allow alimony to the wife, although the divorce was granted to the husband for her misconduct. Coon v. Coon, 26 Ind. 189. The English parliament, in granting to the husband a divorce from the bond of matrimony, always requires him to make some provision for his divorced wife, and for this most just, humane and moral reason, that she may not be driven by want to continue in a course of vice. 2 Bishop on Marriage and Divorce, § 377, note 2.
The judgment for costs was against the plaintiff. It is claimed that this was error. "We think otherwise. It was in the power of the court to compel the husband to pay to the wife, during the progress of the cause, such sums as
The judgment is affirmed, with costs.
Rehearing
ON A PETITION FOR A REHEARING.
— We know of no authority by which this court can be warranted in interfering with a judgment rendered below because the evidence did not justify that judgment, unless we have before us all the evidence. It is not enough that we have merely such a statement as enables us to know that the evidence which was deemed, sufficient below to justify the finding was not sufficient. Right verdicts are, doubtless, often rendered by wrong processes of reasoning. This court, however, has in such a matter to do with the result, and unless that is wrong, we cannot reverse.
In adjusting alimony all the evidence in the cause ought to be considered and acted upon, and then the subject is often a difficult one. It is not yet controlled by definite rules, and the determination of each case must, therefore, depend upon its own circumstances and an enlightened sense of justice and public policy.
Row the bill of exceptions shows merely the evidence which was “given before Judge West upon which he pronounced judgment.” This is entirely consistent with the fact that the whole evidence which was given in the cause would warrant the decree for alimony. The reason upon which the twenty-second rule of this court is founded is, I think, as applicable to the case before us, as it can possibly be to any case. That rule as it now stands merely expresses formally what had always been the practice of this court, and is no impediment to justice, and is easily complied with. If the principle upon which it is founded were relaxed to suit the exigencies of the present case, and relieve the appellant of what his counsel deem a great injustice, it must be ea
A petition for rehearing affords me an opportunity to give, more fully than was done in the former opinion, the sole reason which controlled me and one other member of the court in reaching the conclusion that the judgment should be affirmed.
