8 Utah 142 | Utah | 1892
The appellant in this case filed her complaint for divorce October 15, 1891, alleging, among other things, that she was married to the defendant in November, 1869, at Salt Lake City, where she had resided since that time; and that for several months following her said marriage she was required by the defendant to reside with his mother, and
“Know all men by these presents, that we, the undersigned, Elbridge Tufts and Eleanor B. Tufts, his wife (before marriage with him, Eleanor Bringhurst), do hereby mutually covenant, promise, and agree to dissolve all the relations which have heretofore existed between us as husband and wife, and keep ourselves seiDarate and apart from each other from this time forth. In witness whereof we have hereto set our hands, in Salt Lake City, this 26th day of August, A. D. 1870.
Elbridge Tufts.
EleaNOR B. Tuets.
Signed in presence of D.McKeNSIe, G-eorge REYNOLDS.”
It also appears that at this time the appellant was of the age of twenty years, had no- experience whatever in courts, and supposed that such document above recited was a valid divorce until before the commencement of this suit; that no other divorce had ever' been granted; that several years after this, and while in the belief that she was legally divorced, she again married, one Wickel, but she ceased living with him after she discovered she was not legally married to him; that said defendant has twice married since Rer marriage with him, and has never obtained any legal divorce from plaintiff, etc. To this complaint the defendant filed his demurrer, on the grounds: (1) that said complaint does not state facts sufficient to constitute a cause of action; (2) that
The first question here is, was the demurrer properly sustained? The learned counsel for the defendant now contend that the cause of action arose under the act of this Territory passed 1852 (see Comp. Laws Utah, 1876, p. 375), and that this statute was repealed by the act of 1887 (see Comp. Laws, 1888, § 2602), and that there was no saving clause to this act saving the right of action-conferred by the act of 1852; and therefore the complaint does not state facts sufficient to constitute a cause of action. Section 2602 should not be so construed as to deprive any person of such rights as had accrued under the former act. This act prescribes a less degree of cruelty as a cause of divorce than was required under the former act, but in many respects its provisions are the same. State v. Gumber, 37 Wis. 303; 1 Bish. Mar., Div. & Sep. § 165; Bish. Writ. Laws, §§ 86, 123, 183; Laude v. Railway, 33 Wis. 640. In Pennsylvania it is held that before a statute should be construed to take away a remedy for a prior injury it should clearly appear that it embraces the cause of the injury within its provisions. Chalker v. Ives, 55 Pa. St. 81. In New York it has been held that positive, enactments are not to be construed as interfering with previously existing rights of action, contracts or suits, unless the intent thus to interfere be expressed in the enactment. Butler v. Palmer, 1 Hill, 325; Hitchcock v. Way, 6 Adol. & E. 943; Bedford v. Shilling, 4 Serg. & R. 401. So, also, a statute prescribing causes for divorce, or taking away causes before existing, should be construed to apply only to acts
The complaint states facts sufficient to constitute a cause of action under the statute. The cause of action having accrued and become complete under the laws of 1852, we think it sufficient, unless barred by the statute of limitations. Section 3150, Comp. Laws 1888, is the general statute of limitations applicable to actions not otherwise specified. Actions for divorce are nowhere referred to in any provision of the limitation act. The question is therefore presented whether the general statute of limitations is applicable to action for divorce under the laws of this Territory. Bishop, in his work on Marriage, Divorce and Separation (volume 2, § 426), says “that the statutes of limitations, in the mere ordinary words common in our statutes, are not extended by interpretation to suits for divorce.” But, where the statute by express terms limits the period within which a matrimonial suit must be brought, such statute operates absolutely. By the practice of the English parliament in granting divorce bills, delays in the preliminary steps and in the final application are taken into account; yet there, as in some of the states, where no express statutory bar is created, any reasonable explanation contained in the pleadings or the proofs excusing the delay is to be considered by a court of equity in granting or refusing relief. And lapse of time, when excused, is by no means treated as an absolute bar. In one case cited, poverty being the excuse for delay, the petitioner was granted relief, although 16 years had passed since the adultery was committed. So, also, absence abroad, sickness, and mistake of fact as to the relation existing between the parties, have been held sufficient to excuse the delay in presenting a complaint
Taking the facts as presented in this case in connection with the peculiar relations then existing between husband and wife as recognized by the church of which these parties were evidently members, we can come to no other conclusion than that the delay on the part of the plaintiff in presenting her complaint should be recognized as excusable. Indeed, delay in complaining of family difficulties, and in bringing such matters before the court, is to be encouraged, rather than' punished, in the hope that a better state of things may be established by the voluntary action of the parties. The marriage relation is a continuing one. In legal contemplation, husband and wife are one. In their dealings with each other they are governed by the same rules that are applied to others. Neither should be allowed to claim laches as to the other, but the policy of the law should be to encourage tranquility and forbearance between parties sustaining that relation. While the relation is based upon a contract, yet it is a contract that differs from all others, and is the basis of civilized society. It cannot, like other con