Alexander v. Alexander
| Decision Date | 22 November 1894 |
| Docket Number | 16,951 |
| Citation | 38 N.E. 855,140 Ind. 555 |
| Parties | Alexander v. Alexander |
| Court | Indiana Supreme Court |
From the Monroe Circuit Court.
The judgment is reversed, and the cause remanded, with directions to sustain the motion in arrest of judgment.
J. R East, A. M. Cunning, R. G. Miller, B. K. Elliott and W. F Elliott, for appellant.
J. B Black, H. C. Duncan, I. C. Batman, J. H. Louden and T. J Louden, for appellee.
This was an action for divorce, brought by the appellee against the appellant.
The complaint purports to be based upon alleged cruel and inhuman treatment of the appellant towards the appellee. The particular acts of cruelty, however, which are alleged, amount to little more than exhibitions of bad temper and scolding.
The appellant filed a cross-complaint which is almost an exact copy of the complaint, making the same charges against appellee as are made in the complaint against appellant.
The finding of the court upon the issues so made was as follows: "The court being fully advised in the premises finds for the plaintiff on his complaint, and for the defendant on her cross-complaint."
The judgment entered on this finding was: "It is now, therefore, ordered, adjudged and decreed by the court that the bonds of matrimony heretofore existing between the plaintiff, William M. Alexander, and the defendant, Eliza J. Alexander, be and are hereby forever dissolved, and that they be and are hereby divorced."
It therefore appears that the divorce was not granted to either party, but to both.
The statute, section 1044, R. S. 1894 (section 1032, R. S. 1881), declares that "divorces may be decreed upon the application of the injured party." And in section 1052, R. S. 1894 (section 1040, R. S. 1881), it is declared that "in addition to an answer, the defendant may file a cross-petition for divorce, and when filed the court shall decree the divorce to the party legally entitled thereto." It would seem, then, that the decree in this case is justified neither by the pleadings nor by the findings.
In Gullett v. Gullett, 25 Ind. 517, where the defendant had filed a cross-petition, and the court had found that a divorce ought to be granted, "not upon the application of either party, but upon the whole case," this court held that under the statute a divorce can be granted only upon the application of the injured party, and that a finding in favor of one party and against the other is necessary to authorize a divorce.
That holding was unquestionably a correct expression of the law. A contract of marriage is not to be viewed by the courts as an ordinary contract which the parties may at any time agree to rescind. Neither can the court itself, on learning that the parties have had petty quarrels, and have scolded and called one another hard names, come to the conclusion that they would be better apart. Before a divorce can be granted there must be found an injured party and a guilty party. Society and the State are interested in upholding the marriage relation, and the statutory safeguards thrown around it will therefore be strictly insisted upon. No divorce will be granted except in the manner provided by law.
We are consequently of opinion that in the case before us the motion in arrest of judgment should have been sustained.
Neither the complaint nor the cross-complaint stated facts sufficient to authorize a finding and judgment of divorce in favor of either party. Notwithstanding this, the finding was not only in favor of each of the parties, but against neither of them. Such a finding can not be the foundation of any judgment; there is no one against whom it may operate.
Even as to faults in the finding or verdict, the judgment may be arrested "when the court can not discover therefrom for which party judgment ought to be rendered." Elliott's Gen. Prac., section 996; Gould on Pleading, 504. Yet more, as in this case, where the finding shows that no judgment can be entered for either party.
But counsel say that the reason given in the motion for the arrest of judgment relates wholly to the alleged defects of the complaint. Even if that be so, still, as we have seen the judgment ought to be arrested for that cause alone. But, in truth, the motion in arrest can never exclude consideration of the finding; and it is only when the defects of the complaint or cross-complaint are shown to be cured...
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