37 Neb. 57 | Neb. | 1893
A petition for divorce was filed in the district court of Johnson county March 14, 1891, wherein the plaintiff alleged that she was then, and for the immediately preceding twenty years had been, a resident of said county; that she was married to the defendant March 10, 1886, since which time she had treated defendant and acted toward him as a ■chaste and dutiful wife, until by the wrongs of said defendant she was compelled to leave him. The petition further averred that for the three years just preceding the averments thereof the defendant, without provocation, had been guilty of extreme and repeated acts of cruelty toward plaintiff, by assaulting, shaking, and striking her, and seizing her by the throat, throwing her, calling her a damned liar; and that by reason of the cruel treatment of the defendant plaintiff was, at the time of filing said petition, in mortal dread and fear of the defendant, and had thereby been compelled to leave him. The petition further stated that there was born to plaintiff and defendant as the fruit of their marriage a son, who was, at the time this suit was instituted, of the age of seventeen months, and that the defendant was the owner of certain real and personal property. There was a prayer for a divorce, the custody of the child, and alimony.
On the 24th day of April, 1891, a trial of the issues was had and a decree of divorce entered as prayed in plaintiff’s petition, with alimony, and the custody of the child of the parties.
In so far as such questions of fact were in issue there was evidence from which the district court could properly have found that the charges of cruelty were proved. The evidence on plaintiff’s behalf was detailed by witnesses orally examined in the presence of the court, and we are, therefore, without the means of considering the appearance of the witnesses, which may have greatly influenced the presiding judge in his consideration of their testimony. Under such circumstances, if the evidence is nearly in equipoise, the decree will, not upon appeal be disturbed, because against the weight of the evidence as it might be estimated in the appellate court. For our purpose, therefore, it must
1. The evidence shows that the parties to this action resided together in Johnson county from the date of their, marriage, in 1886, until January, 1891, when they removed to Lincoln county in this state. There they cohabited together as husband and wife until March 11, 1891. The appellee urges that Mrs. McConnell agreed to accompany her husband in his removal from Johnson county to Lincoln county upon, and influenced by, his assurances that he would treat her kindly and desist from all cruelty and unkindness. towards her. It does not seem that these express assurances of future proper conduct ought to cut a great figure in determining whether or not plaintiff was justified in going with her husband to Lincoln county. The marriage relation itself implied just such line of conduct as it is claimed the defendant promised to follow toward his wife. She had a right to expect him to desist from cruelty toward her and to assume that he would treat her with uniform kindness. It was no more than what he had solemnly promised when she became his wife, and a renewed promise thereafter made the obligation no more binding. But his cruel treatment still continued after the re-; mo val to Lincoln county, until by a habeas corpus proceeding, instituted by her own father, Mrs. McConnell and her son were brought back to Johnson county on March 11, 1891, where plaintiff has, as she alleges, ever since resided. ' It is impossible to avoid a very strong suspicion that this habeas corpus proceeding was a mere ruse to en
2. The defendant, however, insists that by reason of the cohabitation of plaintiff and defendant in Lincoln county, superinduced by the promises of the defendant of a complete cessation of cruelties, and the substitution therefor of uniformly kind treatment toward his wife, there was a complete condonation of past cruel and unkind treatment. As has already been observed, this promise was simply to do what, from the marriage relation, is implied as the duty of the husband to his wife. The argument of appellant seems to be founded upon the assumption that the consideration to uphold the promise of the husband as a contract must have been a promise on the part of the wife,
Affirmed.