Johnson v. Johnson

125 Mich. 671 | Mich. | 1901

Grant, J.

(after stating the facts). The question presented is, Can a husband maintain replevin against his wife for goods taken by her from his home, where his treatment was such as to justify her leaving him, and would amount to desertion on his part ? It was decided in Smith v. Smith, 52 Mich. 538 (18 N. W. 347), that the husband cannot maintain replevin for such goods when he has abandoned his wife. In Warner v. Warner, 54 Mich. 492 (20 N. W. 557), it was held that, under circumstances similar to those in the present case, the husband, and not the wife, was guilty of desertion. These cases, however, do not touch the question now presented. The court of chancery alone has jurisdiction in divorce cases, and the determination of how much of the husband’s property shall, upon a divorce obtained by the wife, be decreed to her. She cannot, on leaving the home for alleged misconduct on his part, take from the homestead the household goods, without the consent of her husband. There was evidence tending to show that plaintiif gave permission to his wife to take away the property. If this was so, she was rightly in possession, and he could not maintain replevin for it, at least without demand.

Judgment reversed, and new trial ordered.

The other Justices concurred.