110 Ind. 316 | Ind. | 1887
In .this case errors are assigned here by appellant, the defendant below, which call in question (1) the sustaining of appellee’s demurrer to the second paragraph of his answer, and (2) the overruling of his motion for a new trial.
We will consider these errors in their enumerated order, and decide the questions arising thereunder.
Appellee’s complaint herein was filed on the 12th day of November, 1886. She alleged therein, in substance, that she was, and had been for more than fifty years immediately last past, a bona fide resident of Blue River township, in Johnson county, Indiana; that on the 20th day of May, 1837, she intermarried with appellant, and, at all times since such marriage, had lived with him as his wife until the 16th day of September, 1885, when she was compelled to and did leave the house and home of herself and appellant,.in said township, because of appellant’s continuous misconduct and habitual intoxication, and his cruel and inhuman treatment of herself, and since the day last named she had, at all times, lived separate and apart from appellant, and away from their ■said home; and that appellee had at all times during such marriage, until said separation, performed all the duties devolving upon her, by virtue of such marriage, as a true and
Appellant answered in two paragraphs, of which the first was a general denial, and the second paragraph stated a special defence; and he also filed a cross complaint, wherein he* charged- appellee with cruel and inhuman treatment of him,, and, on that ground, prayed for a divorce from her.
1. Appellee’s demurrer to the second paragraph of answer,, for the alleged insufficiency of the facts therein, was sustained by the court; and this ruling is the first error complained of here by the appellant. We are of opinion that there is no available error in this ruling of the court. The-most favorable view that can possibly be taken of the second' paragraph of appellant’s answer is, that it is merely an argumentative denial of some of the facts alleged in appellee’scomplaint herein. That is, it affirms facts which are utterly inconsistent with some of the facts stated in appellee’s complaint, and is, therefore, nothing more than an argumentative denial of so much of the complaint. It is a harmless-error at- most to sustain a demurrer to a paragraph of answer, which is merely an argumentative denial of the complaint, or some part thereof, where, as here, a general denial of the-entire complaint remains in the record; because, in such ease,, every material fact, averred in such paragraph of answer’, may be given in evidence under such general denial. It is well
Under the alleged error of the court below, in overruling appellant’s motion for a new trial, the sufficiency of the evidence to sustain the finding against him is called in question by his counsel. The rule of this court that it will not weigh the evidence, nor reverse the judgment below upon what might seem to be the preponderance of the evidence, applies as well to appeals in chancery or divorce suits, as to appeals in other cases. This court will give the same respect to the finding of the trial court upon the evidence in a suit in equity, or a suit for divorce and alimony, that it has always given to the verdict of a jury or the finding of a court, in an action at law. Lake Erie, etc., R. W. Co. v. Griffin, 107 Ind. 464. Where, in a suit for divorce, the finding of the trial court rests upon conflicting evidence, or is sustained, on every material point, by legal evidence appearing in the record, the judgment will not be reversed on the weight of the evidence. In the case under consideration, the finding of the court below is sustained, and strongly sustained, we think, by the evidence brought before us, on every material point. In such a case, the finding of the court is not, and can not be, contrary to law.
Appellant’s counsel earnestly insist that the circuit court erred in its allowance of alimony to appellee, the amount thereof being too lai’ge, and in its allowance to her for attorneys’ fees, and the costs and expenses of her suit herein, the amount of such allowance being also too large. It does-not appear from the record of this cause that appellant excepted at the time to either of these allowances, or that he moved the court below to modify either of them, on any ground whatever. Appellant can not be heard to claim here, for the first time, that these allowances were illegal or unreasonable in amount, when the record fails to show that he objected below in any manner to such allowances. Teal v. Spangler, 72 Ind. 380. Besides, the allowances complained
The evidence in the record of the case at bar wholly fails to show that, in making the allowances complained of here by appellant, there was any abuse of its discretion by the trial court.
¥e have found no error which authorizes or requires the reversal of the judgment.
The judgment is affirmed, with costs.