Lead Opinion
This is an action by plaintiff and against defendant for a divorce on the ground of adultery. Upon a trial to the district court, the issues were found in favor of plaintiff and the divorce granted. Defendant appeals.
By the reply the averments of the answer and cross-petition, not specifically admitted, are denied. The charge of adultery is reaffirmed. Her insanity is alleged as the reason for her confinement.- It is averred that the real estate referred to was the property of William A. Scales, a former deceased husband of defendant, and upon Ms death the fee thereof descended to his child, Gladys Scales, as his sole heir. The payment to defendant of certain sums of money as temporary alimony and otherwise is alleged; prayer that the cross-petition of defendant be dismissed, and that a decree of divorce be granted as prayed in the petition. The result of the trial was as above indicated.
A number-of questions are presented for decision; but, as the decision of one will control the disposition of the
Defendant was a widow living upon and managing a farm of practically half a section of land, well stocked with live stock and farm implements, holding, as we are justified in inferring, at least a life interest in the real estate, and apparently in a prosperous condition. Plaintiff married ner, moved on and occupied the farm and property. If the averments and proffered evidence are true, within from two to three months after their marriage defendant was taken violently sick while at a meal at the table, and was soon thereafter sent to a hospital at Council Bluffs, and confined in an insane ward, where she remained eleven weeks. She returned to her home one day, was not invited to remain, and went to a neighbor’s, where she was entertained for two or three days. Then a charge of insanity was preferred against her, and she was sent to the hospital for the insane at Lincoln, where she was confined and héld, with more or less freedom, from the month of March, 1905, until November, 1908, during which time no attention or regard was paid to her by plaintiff. When we consider the testimony of Dr. Hay, who was either an assistant physician or superintendent of the hospital during the time of her confinement, and other physicians in charge, as well as those with whom defendant associated, which is preserved in the bill of exceptions (though much of it was rejected by the trial court), we are led to entertain serious doubts as to her insanity. After her discharge no attention was given her by plaintiff, except that at one time he furnished her $10, which he charged up against her estate, the property of which was then in his possession. She was thus thrown upon her own resources after her discharge from the hospital, and was compelled to earn her own living. Within four months after defendant’s incarceration, plaintiff applied to the county court for letters of guardianship of the person and property of defendant, alleging her to be incompetent, and his appointment was
If the allegations and offered proof are true, is plaintiff entitled to a decree, even if the adultery of defendant be conceded? Our answer is, most certainly not. By section 7, ch. 25, Comp. St. 1909, extreme cruelty, whether practiced by using personal violence, or by any other
In 14 Cyc. 650, it is said in tbe text: “By the weight of authority, the offense pleaded in recrimination need not be of the same nature as the offense which defendant has committed. ' Any misconduct on the part of complainant which constitutes ground for divorce bars his suit, without reference to the nature of the offense of which he complains, although in some states a contrary rule prevails by statute or otherwise and the two offenses must be of the same character. Accordingly in most jurisdictions adultery may be set up in recrimination to a suit based on defendant’s cruelty, defendant’s desertion, or defendant’s commission of an infamous crime. So cruel conduct, if made a ground of absolute divorce, may be shown in recrimination of a charge of adultery. And desertion will bar a suit based either upon an act of adultery subsequently committed by defendant, or upon defendant’s cruelty” — citing many cases sustaining the different propositions suggested by • the paragraph. As bearing upon the sentence that “cruel conduct, if made a ground of absolute divorce, may be shown in recrimination of a charge of adultery,” the author cites Nagel v. Nagel, 12 Mo. 58, Reading v. Reading (N. J. Ch. 1886) 5 Atl. 721, Church v. Church, 16 R. I. 667, and Pease v. Pease, 72 Wis. 136, which we have examined, and they are found to fully sustain the text. In 2 Bishop, Marriage and Divorce (6th ed.) sec. 84, the question is propounded: “Where tlie divorce is from bed and board, as ■ it was formerly in England for adultery and cruelty, respect
Much is said and many cases are cited in the “Rejoinder Brief of Appellee” upon the subject of the attitude of one of the counsel for defendant, in that he is the corespondent, an important witness for defendant, and assumes principal charge of the cause of defendant on trial. We fully agree widi the criticism of plaintiff’s attorney. While the law does not prohibit it, the course pursued is against the ethics of the legal profession, is unseemly, and no doubt weakens defendant’s case. The position should be abandoned at once, and the cause placed in the hands of proper counsel, and the one charged as corespondent withdrawn from the case. If such course be pursued, we would no doubt be provided with a better record should this case appear again before us.
The decree of the district court is reversed, and the cause is remanded, with directions to retry the case upon the issues presented, and if both parties be found guilty of such conduct as, under the statute, would entitle each to a divorce, that the petition and cross-petition be each dismissed.
Reversed.
Concurrence Opinion
I concur in that part of the majority opinion holding that the plaintiff should not be divorced if he has been guilty of conduct which in itself entitles- the defendant to a divorce, but I dissent from that part of the opinion which questions the sufficiency of the evidence to sustain a finding that the defendant was guilty of adultery, and dissent from the part of the judgment directing a retrial of that issue.
There is not sufficient proof in the record to sustain
Applying the ordinary rules of practice to this case, it should be determined upon the record presented by the appellant; but, since there may be some reason to believe that she would have made proof of facts sufficient to defeat the plaintiff’s cause of action, I concur with the majority of the court in saying she should 'be given that opportunity. Nothing, however, can be gained by a retrial of the charge of adultery. The evidence is convincing on that score. It was sufficient to convince beyond all reasonable doubt the two juries which tried the defendant’s paramour, and his conviction was affirmed by this court. The proof is satisfactory that the defendant and her paramour were' registered at a Holdrege hotel under fictitious names as husband and wife; that in the defendant’s presence her companion stated to the hotel clerk, “We might just as well get a room and go to bed right;” that about two hours thereafter the officers of the law gained access to this room and discovered the corespondent engaged in putting on his trousers, while the defendant was in bed attired solely in a, robe de nuit and an abbreviated undergarment. The bed gave every evidence of having been occupied by two persons, and the defendant defiantly stated to the officers that they would have done as her companion had if given the opportunity. The defendant’s paramour exclaimed at the time that nothing would save him from the penitentiary.
There is also other evidence in the record tending strongly to convince the impartial mind that the defendant had broken her marital vows. The defendant does not say that she can produce any other competent evidence to sustain her denial, and to the writer it seems an uncalled for waste of time to retry the issue.