Avery v. Avery

• Decision Date: 07 January 1885
• Parties: EDWIN AVERY v. EMILY J. AVERY
• Court: Kansas Supreme Court

5 P. 418

33 Kan. 1

EDWIN AVERY v. EMILY J. AVERY

Supreme Court of Kansas

January 7, 1885

Error from Nemaha District Court.

ACTION for divorce, brought by Emily J. Avery against Edwin Avery. Trial at the April Term, 1884, and judgment for plaintiff. The defendant alleges error, and brings the case to this court. The opinion states the material facts.

Orders and judgment affirmed.

J. A McCaul, for plaintiff in error.

Conwell & Wells, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

Action by Emily J. Avery against Edwin Avery, for divorce, alimony and the possession of a minor child. The facts in the case are substantially as follows: The marriage of the parties took place at St. Joseph, Missouri, on October 24, 1877; Mrs. Avery was then thirty-six years old, and Mr. Avery, forty-two years; it was the first marriage of Mrs. Avery, and the second marriage of Mr. Avery--his first wife having died a year and six months prior thereto, leaving as the issues of such marriage two boys, respectively of the ages of seven and four, and one girl about one year old. While Mr. Avery and his first wife were living together near Sabetha, Nemaha county, Mrs. Avery--then Emily J. Williams--visited relatives in the vicinity. At that time the parties to this action became slightly acquainted with each other. After the death of the first wife, Mr. Avery opened a correspondence with Miss Emily J. Williams, at her home in Pennsylvania. The correspondence resulted in their marriage. On the day following the marriage, the parties went directly from St. Joseph to the farm of Mr. Avery, near Sabetha, where they resided together until February 14, 1883, and during this time their only child, Bessie L. Avery, was born. On February 14, 1883, with the consent of the parties, Mrs. Avery went to visit her relatives at her former home in Pennsylvania--her husband giving her fifty dollars to go with. Soon after her departure, Mr. Avery advertised the sale of his personal property and sold the same, first selecting such articles as remained of the clothing and personal effects brought to their home by Mrs. Avery at the time of their marriage, and, putting the same in a box, took them to the residence of a relative of Mrs. Avery at Sabetha, and left them there for her. On April 3, 1883, Mr. Avery wrote to a cousin of Mrs. Avery that he had broken up housekeeping, rented his farm for two years, that lie would never keep house again, and that he was going to take his children to his mother's in Rooks county. In June following, he wrote to his wife that he was going to get a divorce. At the time of his second marriage, Mr. Avery was the owner of' a farm near Sabetha, of 160 acres, worth about $ 5,000. He continued to reside upon this farm with his wife and all his children, until Mrs. Avery went to Pennsylvania, in 1883. His second wife, Mrs. Emily J. Avery, at the time of her marriage, outside of a box of bed clothing and a trunk of wearing apparel, was destitute of other property. The court granted Mrs. Avery a divorce on the ground of extreme cruelty; gave her as alimony, the west 80 acres of her husband's farm, and the custody of the minor child, Bessie.

It is contended that the judgment is not sustained by the evidence. We think otherwise. It is a misfortune of the parties that they were not better acquainted with each other before their marriage. Their courtship was solely by letters. Mr. Avery was rough and uncouth in his deportment and in his expressions. In 1875, Mrs. Avery--then Miss Williams--was a missionary to the Osage Indians, and afterward was the matron of the Home of the Friendless, at Leavenworth, in this state. Several of the witnesses spoke of her as "a perfect lady." One witness, who had known her for several years at Sabetha and Leavenworth, testified "that she was a first-class woman and devoted christian; that she was of an amiable and good disposition, and one of the best of women and mothers; that when at Leavenworth she was regarded as one of the best ladies there." Another lady who visited them about six months, when their little girl was a year and a half old, testified "that during the time she was there Mrs. Avery always treated her husband kindly and considerately, and when abused by him would not answer back, but usually walked away and cried about it; that she always treated her husband's children by his first wife as well as she did her own, and seemed to take as much interest in them; that she became acquainted with her in 1876, at Leavenworth, Kansas, and always found her a pleasant and agreeable person, and one easy to get along...