Bell v. Bell

• Decision Date: 26 May 1908
• Citation: 15 Idaho 7,96 P. 196
• Parties: TILLMAN BELL, Respondent, v. M. ALBERTA BELL, Appellant
• Court: Idaho Supreme Court

96 P. 196

15 Idaho 7

TILLMAN BELL, Respondent, v. M. ALBERTA BELL, Appellant

Supreme Court of Idaho

May 26, 1908

DIVORCE-MOTION TO DISMISS APPEAL-INSUFFICIENCY OF SPECIFICATION OF ERROR-DESERTION-INSUFFICIENCY OF EVIDENCE TO ESTABLISH-CORROBORATION-SEPARATION-MUTUAL CONSENT-OFFER OF HOME-CHARACTER OF-REAL ESTATE-TITLE TO-NOT DETERMINED WHEN DIVORCE NOT GRANTED.

1. A specification of insufficiency of the evidence which designates some particular fact, and avers that it is not justified or sustained by or is contrary to the evidence, is sufficient.

2. Held, that the evidence is not sufficient to establish wilful desertion that had continued for one year prior to the commencement of this action.

3. Held, that the evidence fails to establish the fact that the plaintiff offered to furnish the defendant a suitable home or to support her.

4. If a husband fails to furnish his wife a home suitable to their condition, and reasonable support, and she is compelled by necessity to leave him and seek employment whereby to earn her own support, without intention of deserting him, such a leaving is not wilful desertion under the provisions of sec 2460, Rev. Stat. In such case, the wife is an involuntary actor and acts because of necessity and on account of the bad conduct of the husband.

5. Under the provisions of sec. 2471, Rev. Stat., a divorce cannot be granted upon the uncorroborated statement admission or testimony of the parties.

6. Under the provisions of that section, the statement admission or testimony of either of the parties to the action may be admitted in evidence, but is not of itself sufficient corroboration of the testimony of the other to the facts introduced to establish the main issue in the action, for under the provisions of said section, the statement admission or the testimony of both of the parties to the action requires some extrinsic corroboration.

7. The provisions of that section do not prohibit the introduction of statements, confessions and admissions of the parties, but only provide that a decree shall not be granted on them alone.

8. The provisions of said sec. 2471 are mandatory, and there must be some other and different corroboration of the main facts in issue than the statement, admission or testimony of the parties.

9. Where an issue in regard to the ownership of certain real estate is put in issue in an action for a divorce and the divorce is not granted, such issue will not be determined.

(Syllabus by the court.)

APPEAL from the District Court of Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action for divorce and to determine title to certain real estate. Judgment for plaintiff. Reversed.

Judgment set aside. Costs of this appeal awarded to the appellant.

Daniel Needham, for Appellant.

There is not a particle of evidence as to desertion by defendant, as contemplated under sec. 2460, Rev. Stat., but on the contrary, the evidence shows that the defendant's going was brought about by the acts of the plaintiff, and that she was and is ready and willing to return at any time when plaintiff will provide a home for her and their son. (Bishop on Marriage and Divorce, sec. 1737 et seq.; Pidge v. Pidge, 3 Met. 257, 261; Smith v. Smith, 12 N.H. 80; Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938.)

There is nothing in all the evidence but the statements of the parties to the action; not a word of testimony to corroborate the testimony of the plaintiff in this action, and under the law of this state, a divorce cannot be granted on such testimony. (Sec. 2471, Rev. Stat.; Kenniston v. Kenniston (6 Cal.App. 657), 92 P. 1037; Kuhl v. Kuhl, 124 Cal. 58, 56 P. 629; Hayes v. Hayes, 144 Cal. 627, 78 P. 19; Berry v. Berry, 145 Cal. 787, 79 P. 532; Gunther v. Gunther (N. J. Ch.), 57 A. 1015; Corder v. Corder (N. J. Ch.), 59 A. 309; Sabin v. Sabin (N. J. Ch.), 59 A. 627; Hunt v. Hunt (N. J. Ch.), 59 A. 642; Hagle v. Hagle, 74 Cal. 608, 16 P. 518; Haley v. Haley, 67 Cal. 24, 7 P. 3; Briggs v. Briggs (N. J. Ch.), 59 A. 878; Edwards v. Edwards, 69 N.J. Eq. 522, 61 A. 531; Meier v. Meier, 68 N.J. Eq. 9, 59 A. 234; McElhaney v. McElhaney, 125 Iowa 333, 101 N.W. 93; Herold v. Herold, 47 N.J. Eq. 210, 20 A. 375, 9 L. R. A. 696.)

F. E. Fogg, and C. H. Nugent, for Respondent.

To say in an attempted specification of insufficiency of the evidence that the third finding of fact is contrary to and unsupported by the evidence does not point out as required by the statute wherein the evidence is insufficient. ( Haight v. Tryon, 112 Cal. 4-7, 44 P. 318; Kumle v. Grand Lodge, 110 Cal. 204-213, 42 P. 634; Eddelbuttel v. Durrell, 55 Cal. 277; Spotts v. Hanley, 85 Cal. 155, 24 P. 738; Menk v. Home Ins. Co., 76 Cal. 50, 9 Am. St. Rep. 156, 14 P. 937, 18 P. 117.)

The desertion is made out when it is shown, as in this case, that the absence commenced and has continued during the prescribed period, without the consent and against the objection of the other party. (Benkert v. Benkert, 32 Cal. 467; Sisemore v. Sisemore, 17 Ore. 542, 21 P. 820.)

When all presumptions of collusion are repelled, and, from circumstances, it appears reasonably certain that the confession made is true, the ground of the rule of exclusion in cases of divorce is obviated, and there can be no reason for refusing consideration to the confession. (Baker v. Baker, 13 Cal. 88-94; Venzke v. Venzke, 94 Cal. 225, 29 P. 499; Smith v. Smith, 119 Cal. 183-191, 48 P. 730, 51 P. 183.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This action was brought to obtain a divorce on the ground of desertion and to have the appellant decreed to hold in trust certain real estate consisting of about 200 acres of land, situated near the city of Lewiston, Nez Perce county. It is alleged in the complaint that on or about the 1st day of March, 1903, the defendant, disregarding the solemnity of her marriage vow, wilfully and without cause, deserted and abandoned the plaintiff, and ever since has continued to wilfully and without cause desert and abandon the plaintiff and live separate and apart from him without sufficient cause and without any reason and against his will and without his consent.

The allegations of the complaint in regard to said real estate are that the plaintiff was owner in fee and possessed of said real estate, describing it, and also of said water right, describing it; that on or about July 20, 1901, the plaintiff voluntarily conveyed said real estate to defendant as he was about to leave the state to be absent for a year; that he conveyed it to his said wife to avoid the inconvenience and delay of administration on his estate in case of his death during his absence; that the defendant then and there promised upon plaintiff's return she would reconvey said property to him; that during the month of July, 1902, plaintiff returned from a trip to Old Mexico and met the defendant in the city of San Francisco, state of California, and at that time she executed and delivered to plaintiff a deed, reconveying to him said real estate; that said deed so executed and delivered to plaintiff was placed in a receptacle in the home of the plaintiff and defendant in Nez Perce county; that after defendant had deserted plaintiff, the plaintiff, upon making search for said deed, discovered that it had disappeared; that, upon information and belief, the defendant obtained possession of said deed and withholds the possession from plaintiff; that said real estate is community property of the plaintiff and defendant, and that the title thereto now stands on the records of said county in the name of the defendant, and is held in trust by her for the plaintiff as his community property and that she refuses either to deliver to him said deed or to reconvey said real estate to him, in accordance with the conditions of said trust; that defendant wrongfully claims to be the owner of said property in fee, and threatens to sell and convey the same in violation of said trust. The prayer of the complaint is that the bonds of matrimony be dissolved and the defendant be decreed to hold the title to said real estate in trust for plaintiff and that she be decreed to reconvey the same to him; that an injunction issue restraining her from conveying said property or encumbering it.

To this complaint the defendant filed her answer, admitting some of the allegations, denying others, and alleges some affirmative matter. She denies that she has ever deserted or abandoned plaintiff; denies that said real estate and water right was conveyed to her to be held in trust for plaintiff, and denies specifically each and every of the allegations of the complaint in regard to her holding said property in trust, and avers that on July 20, 1901, the plaintiff duly conveyed to her, by warranty deed, all of the property mentioned in the complaint, without any qualifications whatsoever different from those contained in the deed, and that thereafter she filed said deed for record in the office of the county recorder of said county; admits that in or about the month of July, 1902, the plaintiff returned from Mexico and met the defendant in said city of San Francisco, but denies that at that time or at any time she executed and delivered to plaintiff any deed reconveying to him said real estate or water rights, and avers and admits that at said last mentioned time the plaintiff then and there promised and agreed that he would, on behalf of the defendant, and for her benefit and account, secure a loan of money sufficient to discharge and pay certain indebtedness which had been incurred by the defendant during the absence of plaintiff in and about her efforts to earn sufficient means with which to support herself and the child of plaintif...