Bradshaw v. Sullivan
| Decision Date | 29 October 1923 |
| Docket Number | 207 |
| Citation | 254 S.W. 1064,160 Ark. 547 |
| Parties | BRADSHAW v. SULLIVAN |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.
Decree reversed.
Price Shofner, for appellant.
It was manifest error to grant a decree for divorce without proof supporting the allegations of the complaint. 38 Ark. 119; Id. 324; 54 Ark. 20; 83 Ark. 533; 99 Ark. 94; 102 Ark. 54; 145 Ark. 254, 261. See also 88 Ark. 604; 77 Ark 195; 80 Ark. 74; 154 Ark. 96.
G. M Bradshaw brought suit for divorce and alleged, as ground therefor, that his wife had deserted him. The decree in the cause appears to have been rendered either pro confesso or by consent. Its recitals are as follows:
The decree awarded the custody of the children to the defendant, and gave her a one-third interest in a tract of land owned by the plaintiff, and gave him an absolute divorce.
The decree was entered July 3, 1922, and on December 29, 1922, an appeal to this court was perfected. Since the rendition of the decree in the court below, the plaintiff died, and the cause was revived in the name of his administratrix.
The transcript in this case contains only the pleadings referred to in the decree, and the clerk of the court below has certified that the transcript is full and complete.
The decree specifically recites that the cause was submitted to the court upon the complaint and the proof of publication of the warning order and the report of the attorney ad litem. There can be no presumption therefore that testimony was heard from which the court found that plaintiff was entitled to a divorce. McClintock v. Lankford, 145 Ark. 254, 224 S.W. 488.
It is provided by statute that the statement of a complaint for divorce shall not be taken as true because of the defendant's failure to answer, or because of his or her admission of their truth. Section 3504, C. & M. Digest. The decree granting plaintiff a divorce was therefore erroneous.
Within the time limited by law for an appeal to this court, the defendant perfected an appeal.
In 1 C J., page 171, § 289 of the chapter on Abatement and Revival, it is said: ...
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