Banks v. Banks

• Decision Date: 25 November 1918
• Docket Number: 20368
• Citation: 118 Miss. 783,79 So. 841
• Court: Mississippi Supreme Court
• Parties: BANKS v. BANKS

79 So. 841

118 Miss. 783

BANKS v. BANKS

No. 20368

Supreme Court of Mississippi

November 25, 1918

Division B

APPEAL from the chancery court of Bolivar county, HON. JOE MAY Chancellor.

Bill by Charles Banks against T. O. Banks, in which defendant made her answer a cross-bill, asking for alimony but not demanding a divorce for herself. From a decree denying divorce to complainant, awarding alimony to defendant, and setting apart complainant's residence to defendant, complainant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and cause remanded.

OPINION

ETHRIDGE, J.

Charles Banks filed a bill against T. O. Banks for divorce in the chancery court of Bolivar county, Second district, alleging that they were married in 1892, but that their relations throughout were unpleasant and his wife was of disagreeable disposition, and that in the year 1914 she assaulted him with a butcher knife in their home, and as a result he could not stay at his home, living with defendant that he resided at another place in the same town for about two years after this time, and that his wife again assaulted him, striking him with an inkstand, almost severing his ear from his head, and drew a knife on him, and frequently abused him with cursing and other offensive language; and prays for a divorce from the bonds of matrimony. T. O. Banks filed an answer, denying the allegations of the bill and recriminating, charging that Charles Banks had himself violated the marriage contract by having improper and adultrous relations with a woman named Lea; the charge being in this language:

"Respondent would show: That for a long time prior to the 20th day of November, 1916, the said complainant had been guilty of improper relations with Lelia Lea, a woman who had formerly been married and lived at Mount Bayou, but who had for some time prior to the 20th day of November, 1916, been separated from her husband and was living at No. 740 on Walker avenue, in the city of Memphis, Tenn., that complainant habitually visited her there, and contributed to her a large part, if not all, of the money which she had for her support, and at said place in the city of Memphis was habitually guilty of adultery with the said Lea; and that such conduct was engaged in by complainant for some time prior to the 20th day of November, and has been from that time to the time of the filing of this answer.

"That complainant had been guilty of many other offenses similar to those hereinabove referred to, and that the cause of the complaints made by this respondent were the doing of the things just above mentioned."

The respondent made her answer a cross-bill, asking for alimony, but not demanding a divorce for herself. The chancery court adjudged that complainant had not made out his case, and also adjudged that the allegation of the cross-bill was true, denying the divorce, and awarding alimony to respondent in the sum of fifty dollars per month, and in addition decreed that the residence of the complainant should be set apart for the defendant as a residence, from which decree complainant appeals here.

The complainant and defendant both testified, and their witnesses testified to facts which fully sustained the allegation of the complainant as to the abusive language and as to the assault made upon complainant by the defendant. The chancellor admitted evidence on the charge of adultery of many mere rumors, not made in the presence of the complainant, and admitted statements by the woman, Lelia Lea not in his presence, to third parties, and admitted conversations between T. O. Banks and other parties, not in the presence of the complainant, and admitted complaints made by T. O. Banks to the police authorities in the city of Memphis, and certain proceedings in the juvenile court of Memphis, about the police authorities taking the child or children of Lelia Lea from her custody. On cross-examination of comp...