46 Kan. 724 | Kan. | 1891
The opinion of the court was delivered by
This was an action for divorce, and for the custody of the children, five in number, and all minors, brought in the district court of Sedgwick county on September 5, 1889, by Robert T. Leach against his wife, Susan H. Leach, charging her with gross neglect of duty in refusing to cohabit with him as his wife, and in refusing to perform the household duties of a wife for more than five years. The defendant filed an answer and cross-petition, charging the plaintiff with gross neglect of duty, and cruelty, and asking for a divorce and the custody of the children, and for alimony. The case was tried from March 1 to 22,1890, before the court without a jury, and the court found generally in favor of the plaintiff and against the defendant, and also found specially as follows:
“The court further finds that the defendant has been guilty of gross neglect of duty as charged in the petition. The court further finds that the defendant is not a proper person to be entrusted with the custody and management of the said minor children. The court further finds that the plaintiff is a proper person to be entrusted with the custody, management and maintenance of the said children. The court further finds that the defendant is entitled to alimony in the sum of $2,500.”
Upon these findings, general and special, the court granted the plaintiff the divorce prayed for in his petition and the custody of the children, and granted to the defendant, as alimony, the sum of $2,500, and awarded to her a large'number
Errors, however, are alleged as occurring during the trial as follows: It is claimed that the court below erred in overruling the defendant’s motion to suppress depositions. It is claimed that the notice to take the depositions specified that the depositions would be taken at Detroit, Mich., on Friday, February 21, 1890, and from day to day until the taking of the same should be completed; but that the depositions were not so taken; that one of the depositions was taken on an adjournment from February 21 to 24, 1890. It appears that two.of the depositions were taken on February 21, 1890, and that an adjournment was then had to February 24, 1890, when the remaining deposition, that of Mrs. Mary Elizabeth Joslin was taken. The defendant did not make any appearance at any time, and there is no pretense that the adjourn
“Thereupon I adjourned the taking of said depositions to Monday, February 24, 1890, between the hours of 8 o’clock A. M. to 6 o’clock p. M.; Saturday, February 22, 1890, being a legal holiday (Washington’s birthday), and February 23, 1890, being Sunday. Said adjournment was taken on account of the illness of Mary Elizabeth Joslin, a witness produced by said plaintiff. Thereupon, on Monday, February 24,1890, the said plaintiff produced said witness Mary Elizabeth Joslin, who testified as follows, to wit.”
The plaintiff in error also complains “of error in the admission of the evidence of Mrs. Reeves as to Mrs. Leach’s desire to leave Kansas, etc.; also the evidencexrelating to her conduct shortly after the birth of her last child.” Her last child was born on January 8, 1882. The first of the above complaints has no importance one way or the other; and the second shows that a few months after the birth of the defendant’s last child she had a dance at her house, and danced herself. This was for the purpose of showing that her health was good. It was also shown that she danced on many other occasions. As before stated, the defendant’s last child was born on January 8, 1882, and prior to that time and in the early part of 1881, when she first discovered that she was pregnant with that child, was the time when the principal troubles between the parties commenced, and from that time on they have had but very little, if any, sexual intercourse with each other.
We cannot say that any substantial error has been committed in this case, and therefore the judgment of the court below will be affirmed.