4 Wis. 135 | Wis. | 1856
By the Oourt,
This was an application on the part of the appellee, for a divorce from the bond of matrimony. The ground of the application appears to be cruel and inhuman treatment by her husband, based upon subdivision 5, of section 9, chap. 79, B. 8.; and upon subdivision 3, section 10, of the same chapter, which latter provision is made a substantive cause of divorce, by section 11, whenever, in the opinion of the court, the circumstances of the case are such that it will be discreet and proper to grant it.
■ The appellee, in the bill of complaint, after unnecessarily detailing at some length her relations to the appellant for some two jmars before her marriage to him, giving publicity to events in their previous history, that, to say.the least, are quire im•pertinent to this issue, and which it would seem both parties ought to be equally interested in burying in oblivion, goes on
The above constitute the material allegations of the bill, upon which a divorce must be granted, if granted at all.
To the bill, the appellant filed an answer, denying, under oath, its main allegations, and charging his wife with unkind
Upon an examination of the record, it is found that but a small part of the testimony given on the trial below has been sent up to this court; but still, it was suggested by the counsel for the appellee, that we should presume that the finding of the jury was warranted by the evidence before them, and that it devolves upon the party assailing the decree here, to show that it was erroneous, and not supported by the evidence. Perhaps it is proper to remark, in answer to this suggestion, that the hearing of an appeal in this court is a review, by a distinct and superior tribunal, of a cause upon the same pleadings and proofs as the cause was heard upon in the court below ; and this applies as well to causes where a feigned issue was ordered, as to Other appeal cases. It is therefore absolutely essential that all the testimony used in the court below should be returned to this court, and ordinarily, a party interested in the testimony will see that it is properly taken and certified to this court.
Did there exist no other objection to affirming this decree, except the one noticed, that there is no testimony before us to sustain it, that would, of itself, constitute an insuperable difficulty, but there are others equally fatal.
And, first, it will be conceded that when a bill is essentially defective in substance, no relief can be granted upon it, whatever may be the character of the proof; for the reason that no facts are properly in issue unless charged in the bill; and of course no proof is competent except such as is pertinent to the issue joined. 2 Wis. 552; 1 Hawks’ (N. C.) R. 859; 11 Peters, 229 ; 6 Conn. R. 37; 1 J. C. R. 184; Story's Eg. Plea., § 257. The reason assigned for this rule is such as to commend it to the good sense of every one, which is, “ That the defendant may be apprised by the bill what the suggestions and allegations are,
If the allegations of this bill, to which we have referred, be examined, they will be found, with the most favorable view that can be taken- of them for the complainant, not to constitute a sufficient ground of divorce under our statute. The court is authorized to grant a divorce a vinculo, — by subdivision 5, sec. 9, — ■ ■“ When the treatment of the wife by the husband has been cruel and inhuman, whether practiced by using personal violence or by any other means;” and by sec. 11, discretionary power is given the court to grant it for the causes specified in subdivision S of sec. 10, “ On the complaint of the wife, when the husband, being of suffiicent ability, shall refuse or neglect to provide for her, or where his conduct towards her is such as may render it unsafe and improper for her to live with him.” The conduct spoken of in the latter clause of this subdivision, which would render it improper and unsafe for the' wife to live with the husband, is doubtless such conduct as would constitute cruel and inhuman treatment under subdivision 5, sect. 9. The two causes do not appear to be distinguishable from each other. 2 Kent, 126; Mason vs. Mason, 1 Edw. Ch. R. 278; 2 Val. Arn. Law, Jan. p. 198. Now, although courts have manifested a great unwillingness against defining affirmatively cruelty, as that term is employed in statutes substantially like our own; yet a slight examination of the authorities will show that the facts charged and set forth in this bill, do not constitute cruelty in a legal sense, within the most liberal definition of the term. Cruelty, as used in these statutes, is considered to have very much the sense of sacritia of the civil and ecclesiastical law. And hence it is said that to justify a court in interfering to dissolve the marriage relation, grave and weighty causes must exist, which show that the duties of the married life cannot be discharged. 2 Kent, 126; Bishop on M. & D. chap. 23; Barrare vs. Barrree, 4 J. Ch. R. 187; Mason vs. Mason, supra; Evans vs. Evans, 1 Hagg. R. 35; Holden vs. Holden, ib. 453; D'Aguilar vs. D'Aguilar, t Hagg. R. 773; Harris vs. Harris, 2 id. 376. Abusive and opprobrious language, which wounds the feelings merely, unaccompanied with any bodily injuries, actual or menaced, is not considered a ground for a divorce. The allegations of the com
We do not know but the complainant intended placing her application for a divorce upon another ground, and to bring it within the case mentioned in the first clause of subdivision 3, sec. 10. By that clause it is made a cause for a divorce “ when the husband, being of sufficient ability, refuses or neglects to provide for his wife.”' If so, her bill falls far short of setting forth such a case. Her husband has not refused or neglected to provide for her, but he has not made such provisions for her comfort as perhaps he might, and in duty ought to have made. It seems they have been keeping house some» four months. The house in which they live was a log one, and with few of the conveniences for housekeeping about it; besides, it was poorly provided with household furniture, bedding, &c. The complainant alleges that she has been scantily supplied with clothing, and. has at times had to live.upon musty bread. Being disposed to take the most favorable view for the .complainant of all these charges of unkindness and want of attention to her happiness and comfort upon the part of her husband, he being able to make ample provisions for his family ; yet we are compelled to say, that while such conduct reflects no credit upon his character,
We have all along considered this cause upon the case made by the bill, without regard to the answer, or anything that might be urged in defence or palliation of the husband’s conduct, for the reason that we deem the bill as essentially and fatally defective in setting forth a cause of divorce.
The decree of the Circuit Court must therefore be reversed, and the'bill of complaint dismissed.