121 Va. 244 | Va. Ct. App. | 1917
delivered the opinion of the court.
This is an appeal from a decree granting to Forest White an absolute divorce from his wife, Mildred Ann White.
The bill presented the complainant’s case in a double aspect, first upon an allegation of cruelty, praying for a divorce a mensa et thoro, and, second, upon an allegation of adultery, praying for a divorce a vinculo matrimonii.
“Your complainant is further advised, and so charges, that on or about June 1st, and for some time previous thereto,, his wife, Mily Ann Smith White, has been guilty of infidelity to him, and has committed adultery with a certain man to your complainant unknown, who frequently calls at your complainant’s home while complainant is away following his vocation, and has relations with your complainant’s wife which are inconsistent with any other presumption except that complainant’s wife and the said unknown man have been guilty of acts of adultery.
“Complainant has been advised that his wife and a certain man who, as before stated, is unknown to complainant, retire to their bed room and remain together for long periods of time, and that complainant’s wife commits other acts, all of which tend to strengthen and confirm the belief that she has been guilty of infidelity to complainant.”
This was a sufficient compliance with the rule that the time, place and circumstances should be averred with reasonable certainty.. The allegations conform to the rule approved in this State and elsewhere generally. Miller v. Miller, 92 Va. 196, 199, 23 S. E. 232; Bishop on Marriage and Divorce (8th ed.) sec. 606; 14 Cyc. 665; 9 R. C. L., p. 418, secs. 219-220.
The next error assigned is that the court erred in reading the deposition of the complainant, Forest White, whose testimony in his own behalf was taken and filed in the cause over the objection of the defendant.
It is conceded that this witness would have been competent if the suit had been based solely on the charge of cruelty,
Some criticism of the opinion of the lower court is made in the brief of counsel for appellant, on the ground that a certain note introduced in evidence, and the writing of which the defendant denied, was given considerable weight by the trial court, when, as a matter of fact, nothing appears in the record to show that the note in question had any bearing upon this case, even conceding that the defendant wrote it. The point is made too late. The card was the subject of considerable investigation and testimony in the lower court without any objection. It was evidently treated by the court and by counsel on both sides as being a proper subject of inquiry, and an examination of the original along with the copy which the defendant made at the trial, satisfies us, as it did the lower court, that the defendant wrote the original and falsely denied its authorship.
The evidence given by the two boys goes into details of a shocking and repulsive character, which neither require nor permit any further discussion. ■
We find no error in the decree complained of and it must be affirmed.
Affirmed.