39 Minn. 258 | Minn. | 1888
These two cases were tried together, and upon the whole evidence submitted for the determination thereof, and it was stipulated that the evidence so introduced should be used in either case in so far as it was material. The court thereupon adjudged the plaintiff in the first case entitled to a divorce on the ground of cruelty, and dismissed the action of the plaintiff in the second case, which was brought for desertion.
1. A former action by the plaintiff, Adele, for cruel and inhuman treatment, was dismissed upon the merits, by the court, on the 20th day of February, 1884. Upon the trial of these eases the court received evidence, against the objection of the defendant, tending to show the state of feeling between the parties, and misconduct towards her on the part of the defendant, antedating the former actions. But
2. The defendant, Max Segelbaum, assigns as errors the fourth and fifth findings of fact by the trial court, on the ground that the same are not supported by the evidence. The court therein finds that the allegations in his complaint, charging desertion, are not true, and also finds that the parties lived together as husband and wife from the date of their marriage until February 27, 1884, she having the care of their household and children, except that from the month of January, 1883, until the commencement of this action, she has refused to occupy his bed. The action of the plaintiff, Max, for desertion, was commenced November, 1886, and that of the plaintiff, Adele, for cruelty, on the 24th day of February, 1887. We think there is evidence tending to support the court’s findings of fact in respect to the relations and continued cohabitation of the parties, and the only question to consider is the legal conclusion to be drawn therefrom. In the ecclesiastical courts, which had jurisdiction of matrimonial causes, desertion was not a ground for divorce, but the remedy was a suit for the restitution of conjugal rights, where either party separated from the other without any sufficient cause, in which case the •court would compel the parties to come together again, if either party was weak enough to desire it contrary to the inclination of the other. 3 Bl. Comm. *94. In those courts, however, a clear distinction is made between marital cohabitation and sexual intercourse, and the jurisdiction extended no further than to enforce the former. Forster v. Forster, 1 Hagg. Con. 144, 154. In this country, the remedy for
3. In respect to the charges of cruel treatment, there is considerable conflict in the testimony of the parties, and upon the state of the evidence the determination of the trial court must be held final, as in ordinary cases of the trial of issues of fact. Dayton v. Buford, 18 Minn. 111, (126;) Marvin v. Dutcher, 26 Minn. 391, (4 N. W. Rep. 685.) The complaint contains general and specific charges, setting forth generally that, during the greater part of the married life of the parties, and for the past seven years, and down to the present time, the defendant has persisted in a course of cruel treatment of the plaintiff, has continued to worry, annoy, and abuse her, and to subject her to personal indignity and bodily injury, adding specific instances of alleged cruelty and personal assault. The plaintiff was obliged to prove acts of cruelty other than those relied on in her former suit, and must rely upon those alleged in her complaint in this action as the substantive ground of her present application. But the court may, in such cases, take into account facts which are not pleaded, when they tend to prove those that are, though they alone would not be the foundation for a divorce. The relations of the parties, their conduct and manner of life, are therefore deemed material, and evidence of conduct and acts outside of those specially alleged may be received as explanatory, and as giving weight and credence to the specific charges relied on and set up in the pleadings. 1 Bish. Mar. & Div. § 727; 2 Bish. Mar. & Div. § 658; Whis
4. The only remaining question to consider is that of the allowance of alimony. The court allowed plaintiff as permanent alimony the sum of $8,000 out of the estate of the defendant, payable in instal-ments. This, it is claimed by defendant, is excessive, and more than one-third of the value of the defendant’s estate. But, in the light of all the evidence, we do not think that we are warranted in holding that the evidence is insufficient to support the judgment in respect to the sum allowed. The value of his real property is found to be $8,100, and this is not complained of. As to other property, the evidence shows that he is an equal partner in a large and well-established dry goods business, in the city of Minneapolis, in good credit and standing; that the firm has over $6,000 in outstanding accounts, and $4,000 on deposit in bank, one-half of which belongs to him. The defendant also states the value of the stock of goods, as inventoried at wholesale cost prices, with 5 per cent, added for expenses, to be $179,000; that “these inventories were made in the usual course-of business, for the purpose of ascertaining how many goods we had on hand. If I was asked by our creditors to make a statement of our assets and liabilities, I should put the value of the stock at the price as shown by the inventories and our books, and the liabilities at $116,-000.” Though he and other witnesses also testify that the stock is not worth more than 50 cents on the dollar, it is manifest that they refer to a forced sale of the whole stock, which is not a fair basis upon which to estimate the value of his property; for, in that view, his indebtedness would exceed the value of his entire estate. The defend
Judgment affirmed.