Bordeaux v. Bordeaux
| Decision Date | 26 February 1904 |
| Citation | 75 P. 524,30 Mont. 36 |
| Parties | BORDEAUX v. BORDEAUX. |
| Court | Montana Supreme Court |
Commissioners' Opinion. Appeal from District court, Silver Bow County; Wm Clancy, Judge.
Action by John R. Bordeaux against Ella F. Bordeaux. From a judgment in favor of plaintiff, defendant appeals. Reversed.
See 75 P. 359.
John J McHatton, W. A. Clark, Jr., and Jesse B. Roote, for appellant.
Stapleton & Stapleton and B. S. Thresher, for respondent.
Appeal from judgment and order overruling motion for new trial. The action was commenced by John R. Bordeaux, as plaintiff against Ella F. Bordeaux, as defendant, for a divorce on the ground of desertion, by filing a complaint on January 26, 1899. Defendant answered, denying all the material allegations, and, by way of "recrimination, defense, counter claim, and cross-complaint," set forth a claim for a divorce on the ground of desertion and extreme cruelty. To this answer plaintiff tiled a replication denying all the material affirmative allegations. On February 25, 1899, plaintiff filed an amended complaint, in which was set forth desertion as one cause of action, and, as another, several specific, and many general, acts of adultery on the part of the defendant. Further reference to this first amended complaint is immaterial, because it was again amended as hereinafter set forth. Defendant filed a demurrer to this amended complaint, which was sustained by "consent," and 10 days allowed to file a further amended complaint. On March 3, 1899, a second amended complaint was filed, which consisted of two causes of action: First, desertion; and, second, adultery. The specific adulterous acts set forth were that the defendant committed adultery with an unknown person on the 1st day of September, 1891, in the "Old Owsley Building"; also with Lyman A. Sisleyon the 23d day of September, 1897, "at a house on the west side of Missoula Gulch, which was then in an unfinished condition, and which is now numbered eight hundred and twenty-five West Broadway street, in Butte City"; also with Lyman A. Sisley on the 2d day of October, 1897, "on the west side of Missoula Gulch, in a new building, which was then in an unfinished condition, and is now numbered 825 West Park street, Butte City"; also with Lyman A. Sisley during the month of August, 1897, "in a lodging house on the east side of Main street, in Butte City, *** known as and called the 'Red Boot Lodging House"'; also on the 30th day of November, 1896, with Lyman A. Sisley, "in room number 27 in what was then, and is now, known as the 'Weyerhorst Block"'; also with Lyman A. Sisley on or about the 25th day of November, 1897, at plaintiff's residence. This complaint contains some five or six other allegations, charging adultery generally, at different times and places, and with Lyman A. Sisley, or persons unknown. Defendant demurred to this second amended complaint. This demurrer was overruled. Defendant then filed her answer, denying each and every material allegation of the complaint, and alleging, "by way of recrimination, defense, counter claim, and cross-bill," as a ground for divorce, first, the desertion of the defendant; second, his extreme cruelty. To the affirmative matter set forth in this answer, plaintiff filed a replication denying all the material allegations thereof. Upon these pleadings the cause came on for trial on the 16th day of August, 1901, before the court and a jury.
1. Suit Money and Attorney's Fees. The first error urged is based upon the action of the court in entering the order of August 17th on the hearing of defendant's application for attorney's fees and suit money. This application was filed on August 5th. The court made an order, returnable August 10th, requiring plaintiff to show cause why the application should not be granted. On this return day the court refused to hear the application, for the reason that the proper notice had not been entered in the motion book. On August 17th, the time the order was granted, the trial was proceeding. The court refused to consider the application as to attorney's fees, and refused to grant plaintiff any greater sum than $200 for suit money. By the uncontradicted showing made upon this application, a much larger sum than $200 appeared to be necessary to enable the defendant to properly prepare and present to the court her defense, and her own cause of action against the plaintiff, as alleged in her answer. The $200 was allowed by the court "to pay witness fees for witnesses who might attend upon the trial in behalf of the defendant," and nothing was allowed to pay the other necessary expenses of properly preparing her case for trial, and presenting the same. The court refused to consider the application as to attorney's fees "until after the case had been tried and determined." We are of the opinion that the court abused the discretion vested in it, refusing to make a larger allowance for "suit money," and in refusing to consider the application as to attorney's fees. As said by the Supreme Court of California in the case of Sharon v. Sharon, 75 Cal. 1, 48, 16 P. 345, 366: "The discretion of the court is a legal discretion, to be reasonably exercised. ' A bused of discretion ' in making such order does not necessarily imply a willful abuse or intentional wrong. In legal sense, discretion is abused whenever, in its exercise, a court exceeds the point of reason, all circumstances being considered. "The defendant, stood accused of various acts of adultery-one of the most heinous offenses that could be charged against any woman of respectability. The dates of the offenses charged were, for the most part, some years prior to the trial of the suit. It was important, therefore, that the defendant investigate the facts in connection with these charges, ascertain the witnesses in her behalf, and generally to so prepare her case as to meet the charges made in the complaint, and prepare her case against the plaintiff for trial. From her showing, which, as said before, was uncontradicted, it appeared that she was without funds of any kind; and the court had already found, upon a former application for alimony, expenses, etc., that the plaintiff was possessed of property exceeding in value the sum of $69,000. This order of the court was introduced as a part of plaintiff's showing on this application. We are therefore satisfied that the allowance made was so grossly inadequate, under all the circumstances, that it was, in effect, a denial to her of the funds necessary to be expended in the proper preparation and presentation of her case to the court.
2. Recrimination. The complaint, as above stated, charged the defendant with two statutory grounds of divorce, viz desertion and adultery. The answer denied the allegations of the complaint, and set up, "by way of recrimination," that the plaintiff was guilty of extreme cruelty and desertion--two other statutory grounds of divorce. The plaintiff filed a replication to this answer, thus raising issues upon its allegations. Plaintiff's cause of action on the ground of desertion was abandoned at the trial, but all the other issues were tried. The jury, in reply to requests for special findings submitted by the defendant, answered that the defendant did commit adultery, that the plaintiff was not guilty of extreme cruelty, and that he did not desert the defendant. In reply to special findings submitted by plaintiff, the jury found that defendant did commit some of the offenses of adultery charged. After the jury had rendered their verdict, written application was made to the court by plaintiff to adopt the findings of the jury, and by the defendant to disregard the findings returned against her, and to make other and further findings. The court adopted findings 1, 2, 3, 4, 5, and 7 returned in favor of plaintiff, allow which related to the adultery of defendant, and, at his request, made a further finding to the effect that plaintiff had been president of the state of Montana for five years last past. The court then, of its own motion, set aside and refused to adopt all the further findings of the jury. Section 160 of the Civil Code provides that divorce must be denied upon a showing of recrimination. Section 170 of the Civil Code defines "recrimination" as "a showing by defendant of any cause of divorce against the plaintiff." By section 132 of the Civil Code, extreme cruelty and desertion are grounds of divorce. As above stated, the answer set forth, "by way of recrimination," these two grounds of divorce as against the plaintiff. The jury found specially against defendant on both grounds. The court set aside these findings, and denied defendant's application to make findings on the other issues in the case. The conclusion resulting from this action of the court is apparent, viz., that no findings were made upon the recriminatory allegations in the answer. In such case the judgment cannot be maintained. These issues were material, and the findings must cover all matters at issue made by the pleadings. Cassidy v. Cassidy, 63 Cal. 352. The above cited case is peculiarly in point. The action was by the husband for divorce. The wife denied the allegations of the complaint, and set up the defense of extreme cruelty. The court found that all the material allegations of plaintiff's complaint were true, and rendered judgment for the husband. No finding was made by the court upon the issues tendered by the wife as to cruelty. The court say: "It is well settled in this state that the findings must respond to all the material issues made by the pleadings: "citing Swift v. Canavan, 52 Cal. 417; Billings v. Everett, 52 Cal. 661; Phipps v. Harlan, 53 Cal. 87. That court held that the defendant may...
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