163 Ind. 26 | Ind. | 1904
Action by the appellee against the appellant for a divorce, alimony, custody of four infant children, and an allowance for their maintenance. The causes for divorce alleged in the complaint were cruel and inhuman treatment of the plaintiff by the defendant, and his failure to make reasonable provision for his family for more than two years. Answer in three paragraphs, the first being a general denial, the second alleging condonation of the injuries charged, and the third a plea that the
No question is made upon the pleadings. The errors assigned, and not waived by failure to discuss them, are as follows: “(9) The court erred in the conclusions of law stated upon the special finding of facts; (10) the court erred in overruling appellant’s motion to modify the. conclusions of law stated upon the special finding of facts; (11) the court erred in overruling appellant’s motion for a new trial; (12) the court erred in overruling appellant’s motion to modify the decree and judgment; (13) the court erred in overruling appellant’s motion to modify the judgment.”
The court stated six separate conclusions of law, which were, in substance, as follows: (1) That the plaintiff was entitled to a divorce from the defendant; (2) that the plaintiff was entitled to the care and custody of the four children; (3) that the plaintiff was entitled to recover from the defendant, as alimony, $8,466; (4) that the defendant be required to pay to the plaintiff $500 for her attorneys’ fees in the action, and that he also pay to her for the maintenance of the said children $30 per month until the further order of the court; (5) that the deed executed by the defendant, October 18, 1902, to Margaret Noonan, was fraudulent and void, and for that reason should be
The ninth assignment of error (being the first set out in this opinion), stating that the court erred in its conclusions of law, is joint, and therefore, unless good as to all said conclusions, it is good as to none. Jones v. State (1903), 160 Ind. 537, and cases cited; Saunders v. Montgomery (1895), 143 Ind. 185; Clause Printing Press Co. v. Chicago, etc., Sav. Bank (1896), 145 Ind. 682; Royce v. Bourne (1897), 149 Ind. 187, 190; Jones v. Mayne (1900), 154 Ind. 400; Maynard, v. Waidlich (1901), 156 Ind. 562, 565. It is not contended that all the conclusions of law upon the facts stated were erroneous; hence this assignment could not avail the appellant. But, even if the assignment had been several, it could not have been considered. Neither in appellant’s statement of points and propositions in his brief nor in his printed argument is there any point or proposition to the effect that any conclusion of law stated by the court is erroneous.
Eule twenty-two of this court contains this requirement: “Fifth. * * * Following this statement [of so much of the record as fully presents every error and exception relied on], the brief shall contain, under a separate heading of each error relied on, separately numbered propositions or points, stated concisely, and without argument or elaboration, together with the authorities relied on in support of them. * * * No alleged error or point, not contained in this statement of points, shall be raised after-wards, either by reply brief, or in oral or printed argument, or on petition for rehearing.” . Under the heading of “propositions and authorities,” in appellant’s brief, two propositions only are set out, viz.: “The decision of the court is not sustained by sufficient evidence; the decision of the court is contrary to law.” Where error is predicated of or upon conclusions of law stated on a special finding of
The tenth error assigned — that the court erred in overruling appellant’s motion to modify the conclusions of law — presents no question. Such a motion is not recognized by our code of procedure. The correctness of conclusions of law can be contested only by proper exception to each conclusion, and by assigning as error in this court that the trial court erred in each conclusion of law, or that the conclusion, of law which is challenged is erroneous. Maynard v. Waidlich, supra, and cases cited.
The next assignment is that the court erred in overruling appellant’s motion for a new trial. . The only reasons stated in this motion, discussed by counsel for appellant, are that “the decision of the court is not sustained by sufficient evidence, and that the decision of the court is contrary to law.” Counsel for appellee makes the point that, as there was a special finding of facts,, the reasons stated did not authorize the granting of a new trial; that these reasons did not raise any question of the sufficiency of the evidence to sustain the finding of facts, or any of them; and that error in a conclusion of law is not a reason for a new trial. So far as the conclusions of law are concerned, it is true that the motion presented no question. Weaver v. Apple (1897), 147 Ind. 304, 306; Smith v. James (1891), 131 Ind. 131; Bundy v. McClarnon (1888), 118 Ind. 165; Weston v. Johnson (1874), 48 Ind. 1, 2; Rose v. Duncan
Under the assignments that the decision of the court is not sustained by sufficient evidence, and that it is contrary to law, counsel for appellant contend that the evidence established two facts, either of wliicli was sufficient to defeat the plaintiff’s action: (1) That the defendant was of unsound mind when the acts of cruelty charged in the complaint were committed, and (2) that the plaintiff condoned the grievances for which she demanded a divorce, and that the court should have so found. Both of these defenses were set up by special answers, but the finding of the court
The plaintiff introduced no testimony on the issue of the 'insanity of the defendant, but the expert witnesses for the defendant on cross-examination testified that-the defendant comprehended perfectly the difference between right and wrong; that he had sufficient self-control and power of will to- refrain from acts of violence; that he possessed the ability to manage and control a large and valuable estate and all the details of his business affairs; and that at no time while he was being treated by them as a patient did they feel any apprehension that he would harm, himself or others. The opinion of these witnesses that the defendant was of unsound mind rested largely upon the fact that he had barbarously mistreated his wife —a course of conduct which they thought inconsistent with sanity of mind. It also appeared from the proof that the cruelty and brutality of the defendant, his violent outbursts of anger and malice, and his inhuman disregard of his domestic obligations, were directed against his wife alone. He went upon the stand as a witness in his own behalf, but he did not testify that the barbarous conduct with which he was charged was the result of mental weakness, or of uncontrollable impulse, or that he had no recollection of it. He simply denied it. There was evidence, and an abundance of it, before the court which showed that the defendant was not of unsound mind, and the failure of the court to find the contrary was fully justified by the facts proved.
Condonation of marital injuries is a voluntary pardon and remission of a known wrong done by a husband to his wife, or by a wife to her husband, which would entitle the injured party to a divorce, and a waiver of the right to maintain an action for a divorce for the same, subject to the condition, express or implied, that the misconduct or injury will not be repeated, and that the offending party will thereafter treat the other with conjugal kindness. In most cases condonation will be presumed from proof of cohabitation of the parties subsequent to knowledge of the injury. Armstrong v. Armstrong (1866), 27 Ind. 186; Rose v. Rose (1882), 87 Ind. 481; Sullivan v. Sullivan (1870), 34 Ind. 368; Burns v. Burns (1877), 60 Ind. 259; Phillips v. Phillips (1835), 4 Blackf. 131; Phillips v. Phillips (1870), 27 Wis. 252, 253; 8 Cyc. Law & Proc., 559, and notes; 9 Am. & Eng. Ency. Law (2d ed.), 822, and notes; Turton v. Turton (1830), 3 Hagg. Ecc. 338, 351.
It was decided by this court in Sullivan v. Sullivan, supra, that the doctrine of condonation applies to cruel treatment as a cause for divorce as well as to adultery and other marital injuries. See, also, Gardner v. Gardner (1854), 2 Gray (Mass.) 434.
When the condition and circumstances of the plaintiff, physical and mental, when she returned to her home with the defendant at midnight are considered, it can not be said that her cohabitation with the defendant for the remainder of the night, or even the submission of her person to him, evidenced a voluntary pardon and remission of the outrageous wrongs inflicted upon her for so many years. It is also a fact of considerable importance that she left him the same
The motion for a new trial raises no question in regard to the amount allowed the plaintiff as alimony, but, if we were at liberty to consider the question, we would not think the amount fixed by the court excessive. On the contrary, in view of the value of defendant’s property, the ages of the parties, and the time they lived together, it was less than the court would have been authorized to allow. It follows from what we have said that no error was committed in overruling the motion for a new trial.
It is extremely doubtful whether the motions to modify the judgment and decree presented any question as to -the reasonableness of the allowances for the plaintiff’s expenses in prosecuting her suit, or as to the amount directed to be paid for the support of the children.' It would seem that neither the amount of the attorneys’ fees nor the sum directed to be ]baid monthly for the maintenance of the children is a part of the judgment in the cause. Strictly speaking, they are allowances, and their collection is enforceable by other means than execution. But, if the right to raise the question by motions ,of this kind is conceded, we think
The finding, conclusions of law, and judgment were just and proper, and there is no error in the record. Judgment affirmed, with eight per cent, damages upon the face of the judgment for alimony, with six per cent, interest on such damages from the date of the judgment in the Blackford Circuit Court.