Hull v. Hull

14 Pa. Super. 520 | Pa. Super. Ct. | 1900

Opinion by

William W. Portee, J.,

This application for divorce is apparently based on the two grounds of' cruelty and desertion. The first is ill pleaded and not proven. The second seems to he that upon which the decree is founded. The parties were married in Kentucky, July 4, 1894. They lived -together for about two years in Morefield, Ohio. In July, 1896, the libellant left his wife in Morefield and went to Meadeville, Pennsylvania. She went later, in the same summer, to Nashville or Knoxville, Tennessee. The libellant says, in his exceedingly meager printed testimony: “I have neither seen nor heard anything of my wife since I left Morefield in July, 1896.” He is asked: “ Have you any knowledge of the cause of the separation of the parties; if so, state the same and how do you know it.” His reply is: “ Her refusal to come to Meadeville to live with me. I know it because she told me so.” This is substantially the whole of his printed testimony, save the date and place of marriage; the denial of collusion in the proceeding; and a statement of the wife’s reputed residence in Tennessee. The mother of the libellant testifies that she heard the wife declare that she would not leave her mother’s home. The witness is asked: “ Do you know of her refusal to go to Pennsylvania with her husband ? A. “ Well, I have heard her say she would not go to any place away from her people.” The same witness adds, in a later part of her testimony, that she heard the respondent say that she would not live with her husband again.

A proceeding for divorce is subjected in the appellate court to scrutiny from beginning to end. Particularly is this directed to the testimony, in order that the merit or demerit of the application may on the whole be determined. It is a duty which the Supreme Court have held to be upon them. It is no less a duty upon tins court: Mendenhall v. Mendenhall, 12 Pa. Superior Ct. 290. The libellant left his wife and came into Pennsylvania. There is some evidence of unkindly relation between the parties, upon which it is possible an inference might be founded that the husband did not intend to return to his wife or to take her with him. There is no direct evidence that any invitation was given.to accompany him, or that he prepared a home for her in Pennsylvania. The respondent, after the departure of her husband, left Morefield and went into another state, where she attempted to support herself. There was indubitably a separation of the parties, but it has been held, over and over again, that a separation is not a wilful and malicious desertion. Desertion is an actual abandonment of matrimonial cohabitation with intent to desert, wilfully and maliciously persisted in without cause for two years: Middleton v. Middleton, 187 Pa. 612; Ingersoll v. Ingersoll, 49 Pa. 249. It is not enough to allege a wilful and malicious desertion. The libellant must, in order to be entitled to a divorce, exhibit facts from which the court may legally infer the breach of obligation. “He cannot withhold the facts and prove the inference:” Bishop v. Bishop, 30 Pa. 412. There is nothing in the testimony furnished by the paper-hooks showing a wilful and malicious desertion of the husband by the wife. This defect in the proof erects an insurmountable barrier to the entry of a decree for the libellant. It is not necessary for us to project our investigation beyond it.

The decree of the court below is set aside and the costs are directed to be paid by the appellee.