Belknap v. Stewart

• Decision Date: 08 November 1893
• Citation: 56 N.W. 881,38 Neb. 304
• Parties: BELKNAP v. STEWART.
• Court: Nebraska Supreme Court

38 Neb. 304

56 N.W. 881

BELKNAP

v.STEWART.

Supreme Court of Nebraska.

Nov. 8, 1893.

Syllabus by the Court.

1. The finding and judgment of a court granting a wife a decree of divorce from her husband on the grounds of extreme cruelty are not competent evidence to prove that she was justified in leaving her husband's home, and living apart from him, in an action brought by a third person against the husband for boarding and lodging the wife.

2. In the absence of a special promise of the husband to pay for the board and lodging of his wife, living apart from him, he will not be responsible therefor, unless she live separate from him by his consent, or his conduct was such as to justify her in leaving his bed and board. Schnuckle v. Bierman, 89 Ill. 454, approved.

Commissioners' decision. Error to district court, Lancaster county; Tibbets, Judge.

Action by I. Judson Belknap against Ase Stewart to recover for boarding and lodging defendant's wife. Defendant had judgment, and plaintiff brings error. Affirmed.Pound & Burr, for plaintiff in error.

Sawyer & Snell, for defendant in error.

RAGAN, C.

Belknap sued Stewart in the district court of Lancaster county, alleging in his petition “that on the 17th day of September, 1889, Anna R. Stewart, wife of the defendant, commenced boarding and lodging at plaintiff's house, and continued to board and lodge with plaintiff until the 31st day of December, 1889; that said defendant caused the said Anna R. Stewart, his wife, to leave the home of the defendant, and that she was obliged to leave said defendant's home, on or about said 17th day of September; that the defendant agreed to pay for said board and lodging what the same was reasonably worth, and that said board and lodging were reasonably worth the sum of $4.50 per week. No part of the same had been paid, and there was due the plaintiff from the defendant the sum of $_____.” Stewart's answer to this petition, so far as we notice it, was: First. A general denial of all the allegations of the petition. Second. That at all the times mentioned in plaintiff's petition he was the owner of and in possession of a comfortable home in the city of Lincoln, which he had provided with suitable provisions and board, all of which were free to the said Anna R. Stewart; and that if she procured board of the plaintiff she did it without the consent of the defendant, and wholly upon her own responsibility. Stewart had a verdict and judgment, and Belknap brings the case here.

From the record before us it appears that on the 22d of September, 1889, Stewart's wife left his home, and began boarding and lodging with Belknap, and so continued until December 31, 1889. Two days after Stewart's wife left him, she began suit against him for divorce on the grounds of extreme cruelty, and some time afterwards obtained a decree of divorce on those grounds. On the trial of this case, the pleadings, findings, decree, and all the other proceedings in the divorce case were without objection read in evidence to the jury by Belknap's counsel. When the court came to charge the jury, he excluded from their consideration all these pleadings and proceedings in the divorce suit. This action of the court is one of the errors assigned here by Belknap. The court was entirely right in so excluding them from the jury's consideration. They should not have been admitted in the first place. The object of using these divorce proceedings and decree as evidence in this case was to establish conclusively the fact that Mrs. Stewart, by reason of her husband's extreme cruelty towards her, had just cause for leaving his home, and that she therefore carried her husband's credit with her. But were the divorce proceedings and decree competent evidence in the case at bar for such purpose? We think not. Burlen v. Shannon, 3 Gray, 387, was a suit by a third party against the husband for necessaries furnished the wife. The court said: The decree of divorce was not competent evidence, “because it was not between the same parties. In that case it was the wife against the husband; in the present it is a person who has furnished the wife with necessaries, and he sues the husband. It has been argued that a direct adjudication of the court having jurisdiction on the subject of marriage and divorce, like a decree in a process in rem, is conclusive and binding upon all persons having to establish or contest the conclusions of fact determined by it. We have no doubt that this court has a peculiar jurisdiction on the subject of marriage and divorce, and that a decree upon a libel for divorce, directly determining the status of the parties, -- that is, whether two persons are or are...