McNabb v. McNabb

Citation166 N.W. 457,182 Iowa 1143
Decision Date16 February 1918
Docket NumberNo. 31921.,31921.
PartiesMCNABB v. MCNABB.
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from District Court, Mahaska County; K. E. Willcockson, Judge.

Action for divorce. Plaintiff's petition was dismissed on the merits, and she appeals. Affirmed.Dan Davis, of Oskaloosa, for appellant.

PRESTON, C. J.

In her petition plaintiff asked for a divorce on three grounds: Desertion, cruel and inhuman treatment, and that he has become an habitual drunkard since the marriage.

There was no appearance in the district court for defendant, either in person or council, and a default was entered against him. The plaintiff's evidence was taken down by the reporter. Plaintiff was examined as a witness in her own behalf, as was her mother and another witness. There was cross-examination by the court, but very little of the cross-examination is set out in the abstract. Under the circumstances, we have thought it proper to order a transcript of the evidence in order that we may have the case as nearly as may be as it was presented to the trial court.

[1] It appears that plaintiff has been married to another man, by whom she had five children. She has no children by the defendant. The first husband obtained a divorce from her, but the grounds are not shown in the abstract. Plaintiff had obtained a divorce from the defendant, but had remarried him. Plaintiff testifies to her husband's habits of intoxication, and there is some corroboration by other witnesses at this point, but it appears that defendant was an habitual drunkard before she married him the last time. She testified that before she married him the last time he promised her he would take the cure for the liquor habit, and that he would not drink any more, but that he was not cured, and began his drinking habits again a few days after the last marriage. Under such circumstances we think the requirements of the statute have not been met that to entitle her to a divorce on that ground he must have become an habitual drunkard after the marriage.

[2] Plaintiff testifies as to acts of cruelty which, if corroborated, would perhaps justify the court in granting a divorce. Some of her testimony is in the nature of conclusions, and is such that she could have no personal knowledge, such as that he hunted her with a revolver. The only evidence that could be claimed as corroboration as to the alleged cruelty is given by plaintiff's mother. The mother does not testify to having seen any acts of cruelty on the part of the defendant towards plaintiff. She says he came over to her house, as we understand it, after plaintiff had gone, and that defendant had a gun, but does not testify that defendant made any attempt to use it, or what he did with it, or that any threats were made, or that plaintiff was present. So that the testimony as to this is that of the plaintiff alone, and her evidence is not entirely satisfactory. Code, § 3173, provides that no divorce shall be granted on the testimony of the plaintiff alone.

Such is the situation, too, in regard to the charge of desertion. She testifies that she left the defendant two years before the bringing of the action because of his mistreatment of her. The mother testifies in regard to the separation at about that time, but does not show that they have not lived together since. Another witness...

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