48 P. 423 | Or. | 1898
Lead Opinion
ON MOTION TO DISMISS THE APPEAL.
delivered the opinion.
It is quite apparent, from the very nature of things, that the cause of suit does not survive the death of a party where the only relief sought is a dissolution of the marriage relations, for death effectuates more surely the very end which it is the especial purpose of the suit to accomplish. As was said by Cotton, L. J., in Stanhope v. Stanhope, 11 Prob. D. W. 103, 105, “It would be a singular thing, if, after the marriage had been dissolved by death, there were power to déclare it at an end on another ground.” The authorities are uniform upon this proposition: See Barney v. Barney, 14 Iowa, 189; Wilson v. Wilson, 73 Mich. 620 (41 N. W. 817); Kirschner v. Deitrich, 110 Cal. 502 (42 Pac. 1064); Pearson v. Darrington, 32 Ala. 253; McCurley v. McCurley, 45 Am. Rep. 720. But, where the consequences of the divorce are such as affect the property rights of the parties to the suit, the heirs or personal representatives may have such an interest in the litigation as that the cause will survive, not for the purpose of continuing the controversy touching the right of divorce within itself; but
It has been suggested that the relief which the statute' affords by giving the prevailing party in the suit a one-third interest in the lands of the spouse is but an incident to the divorce, and operates as a penalty for a violation of the marital relations. And so it is, but it does not follow that the suit, after divorce granted, or even that the appeal, abates upon the death of a party thereto. At common law the general rule is that criminal actions abate with the death of the accused, but if the crime be that of treason, or felony which works an attainder, the heirs or personal representatives may prosecute an appeal to reverse the attainder (State v. Martin, 30 Or. 108, 47 Pac. 196), although the forfeiture is but an incident of the action. The cause was permitted to survive to prevent a wrongful devolution of the property of the deceased, should it appear that the judgment of attainder was erroneous. The analogy is apparent without elucidation. The clause of the statute preventing either party from contracting marriage with a third until the period allowed for the appeal has expired is a wise precautionary measure to prevent the evil results which might arise from conflicting marriage relations should the decree of the court below be
Motions Overruled.
Opinion on the Merits
ON THE MERITS.
delivered the opinion.
The evidence is somewhat voluminous, but we do not deem it necessary to discuss it at any considerable length. It appears that the plaintiff and defendant were married in March, 1883, and were both at the time well advanced in years, the plaintiff being sixty years of
Eor the defendant the contention is that the plaintiff left voluntarily because he would not 'drive his son away from home, and we are of the opinion that this is the most probable theory of the case. It is simply one of those unfortunate separations which often take place between a husband and wife on account of the children of one or the other by a former marriage. That Elmer was impudent, saucy, and sometimes abusive, to his stepmother, is unquestioned ; but his conduct was not of such a character as to justify her in leaving her husband ’on that account, even if, as she says, he was unable to control his son. Elmer’s conduct was neither encouraged nor approved by the defendant, and he seems to have done all that could reasonably be expected of him to promote harmony in the family. And, besides, plaintiff was not altogether blameless. She did not show
The plaintiff claims that she was driven away from home by the defendant, but the evidence of numerous witnesses is to the effect that she had repeatedly said that she and Elmer could not live in the same house, and that, if the defendant did not make him leave, she would go herself; and these witnesses are practically corroborated by her own testimony, for, when asked on her direct examination to tell all that occurred at the time her husband told her to leave, she said : “ ‘Well,’ he says to me, he says, ‘you want me to do what you wouldn’t do yourself,’ and I says, ‘What’s that?’ I asked him what that was, and he says, ‘You want me to drive Elmer off.’ I says, ‘No, I never said anything of that kind; I never told you to do that; I never said any such thing.’ Then he says, ‘I want you to go and talk with Elmer,’ and I says, ‘No, I won’t do thatand then he wanted me to go with him, and I says, ‘No, I won’t do any such thing.’ Then he says, ‘That settles it; you will have to go.’ ” And the testimony of the other witnesses on behalf of the plaintiff, who were present at the time, is substantially to the same effect. This indicates very clearly that plaintiff had suggested, if not demanded, that the defendant should compel Elmer to go away from home, and that the matter was being discussed by them at the time ; and,
And, besides, this case smacks very largely of a suit instituted for the purpose of acquiring property rights, rather than a dissolution of the marriage contract. At the time it was instituted the defendant was seventy-six years of age, in feeble health, and has since died. Before the consummation of the marriage, both parties were the owners of real and personal property of about equal value, in view of which they entered into an antenuptial contract, by which it was stipulated and agreed “that the property of each shall be and remain separate, and that we do waive all claim of right of dower and curtesy to the personal or real property of each other that the laws of Oregon do or may permit, and that the debts of each shall be paid out of the property of the party contracting such debts ; ’ ’ and
Reversed.