De Armond v. De Armond

• Decision Date: 14 November 1892
• Citation: 20 S.W. 422,92 Tenn. 40
• Parties: De Armond v. De Armond et al.
• Court: Tennessee Supreme Court

20 S.W. 422

92 Tenn. 40

De Armond v. De Armond et al.

Supreme Court of Tennessee.

November 14, 1892

Appeal from chancery court, Knox county; Henry R. Gibson Chancellor.

Action by Talitha A. De Armond against L. D. De Armond and others for divorce and alimony. From a judgment and decree for plaintiff, defendants appeal. Reversed.

Webb Special Judge.

This is a divorce bill by a wife against her husband seeking a divorce upon the grounds of cruel and inhuman conduct failure to support, and habitual drunkenness. The other defendants are made parties for the purpose of reaching property in their hands, alleged to belong to the husband and subjecting it to complainant's claim for alimony. The chancellor decreed a divorce from bed and board, and alimony. The husband has appealed, and assigned errors.

The first error assigned is that the affidavit to the bill is fatally defective. The language of the affidavit, as it appears in the record, is as follows: "That the statements made in the above bill of her own knowledge are true, and those made upon information she verily believes to be true, and that the above complaint is not made out of collusion, but in sincerity and truth, and for the purposes expressed in the bill." Section 2453 of the Code ^[1] prescribes the affidavit to be made to a divorce bill, and is as follows: "The bill shall be verified by an affidavit upon oath or affirmation, before a justice of the peace, or the judge or clerk of the court, that the facts stated in the bill are true to the best of the complainant's knowledge and belief, and that the complaint is not made out of levity or collusion with the defendant, but in sincerity and truth for the causes mentioned in the bill." The defects in the affidavit in question are: (1) It does not state "that the complaint is not made out of levity;" (2) it does not state that the complaint is not made out of collusion "with the defendant;" (3) it does not state that the complaint is made for the "causes" mentioned in the bill.

Complainant's counsel contends that the omission to negative "levity" is not material, because the affidavit does state that the complaint is made in "sincerity," and that this necessarily means that it is not made out of levity. If this contention is true, then the requirement of the statute as to levity is mere surplusage, and could have been omitted from the statute entirely. We cannot accede to this proposition. The legislature intended to require the complainant not only to show that the complaint was not made from an improper motive, but to go further, and show affirmatively that it was made from the proper motives. So, also, the legislature has determined that a mere general averment of a good motive will not be sufficient, but has required the complainant to go further, and expressly aver the absence of improper motive. Complainant might well assume that her sincere desire for a divorce, even when she had no legal grounds for it, would justify her in swearing that the complaint is made in sincerity. While she is thus evasively swearing that the complaint is made in sincerity, she might at the same time know that the facts stated by her in the bill as grounds for divorce, while technically true, were susceptible of such explanation as would defeat her right to divorce. For instance, she might charge adultery against her husband, and the charge might be true, and yet she had condoned it. Upon this state of facts, she could not truly swear that the complaint was not made out of levity. The legislature intended to make such an evasion impossible, and to compel an applicant for divorce to use the utmost good faith towards the court. We are not to be understood as holding that no other words negativing levity, except those used in the statute, can be employed in the affidavit; but what we do hold is that it is essential that levity be negatived in the affidavit, and this is not done in the affidavit now before us.

Again the affidavit negatives collusion generally, but does not expressly negative collusion with the defendant, which is the particular and only collusion intended to be guarded against. If the general...