Briggs v. Briggs

• Decision Date: 15 March 1886
• Citation: 24 S.C. 377
• Parties: BRIGGS v. BRIGGS.
• Court: South Carolina Supreme Court

24 S.C. 377

BRIGGS v. BRIGGS.

Supreme Court of South Carolina.

March 15, 1886

1. The rule is wise and salutary that requires the Circuit Judge to state his findings of fact separately; but the appellant having suffered no prejudice from the judge's failure to state his findings of fact in this case, there is no ground for a new trial.

2. The Circuit Judge having decreed alimony to the plaintiff upon allegations of adultery, cruelty, and desertion, this court concurred with the judgment below upon the questions of cruelty and desertion.

3. Is adultery on the part of the husband sufficient ground of itself for alimony?

4. Cruelty by the husband towards the wife, or the practice by him of obscene and revolting indecencies in the family circle, is good ground for a decree of alimony.

5. A cold and formal proposition by the husband to give the wife mere house room and support, does not condone his past offences; to have such effect, it should be a cordial overture to her to return to her home and resume the proper place of a wife.

6. The charge for alimony should be only for the joint lives of husband and wife.

Before COTHRAN, J., York, November, 1884.

This was an action by Mary R. Briggs against her husband, Benjamin F. Briggs, for alimony. The opinion states the case.

Messrs. Hart & Hart , for appellant, contended that his first exception was well taken, inasmuch as the Circuit Judge had stated no findings of fact whatsoever, and thus left defendant ignorant of the ground upon which the decree was rested. 2 McCord Ch. , 96; 4 S.C. 291. Upon the 2d and 3d exceptions counsel cited 10 Rich. Eq. , 176; 1 McCord Ch. , 207; Harp. Eq. , 144; 4 Rand. , 662; 4 DeSaus. , 100.

Messrs. W. P. Good and C. E. Spencer contra.

OPINION

MR JUSTICE MCGOWAN.

This was an action for alimony, brought February 28, 1883, by the plaintiff against her husband, Benj. F. Briggs. The grounds alleged were cruelty, consisting not only of foul and obscene language uttered in presence of the plaintiff, but also of blows directed against her body, making life almost an intolerable burden, adultery with a woman of low character living in his house, and desertion. The defendant answered, stating that the plaintiff had previously brought an action against him for " divorce and alimony" which she had discontinued; that she had, without cause, wilfully abandoned the home provided for her; and that, notwithstanding her many past errors and infirmities of mind and disposition, he has at all times been ready to receive her back under his roof and to support and sustain her, & c.

A special referee was appointed to take the testimony, which was very voluminous, and being all printed in the brief need not be stated here. The Circuit Judge made no separate findings of fact, but adjudged and decreed " that the plaintiff recover of the defendant the sum of two hundred dollars per annum during the time they shall live separate and apart, or until he shall agree to cohabit with her and treat her as becomes a man to treat his wife, & c. And also that the defendant do pay the costs of this action, to be assessed by the clerk, as well as the sum of two hundred dollars reported by the referee to be a suitable fee for plaintiff's attorney for his services herein."

From this decree the defendant appeals on the grounds: " I. Because no facts are found or decided for or against appellant as the basis of said judgment. II. Because of error in not finding as matter of fact that the desertion was on the part of the plaintiff. III. Because of error in adjudging alimony against defendant until he should consent to take back plaintiff and treat her as a husband ought to treat his wife, he having made such offer bona fide in his answer as well as at other times previously, and the said offer having been rejected by plaintiff. IV. Because of error in requiring appellant to cohabit with respondent. V. Because of error in requiring defendant to pay to plaintiff the sum of two hundred dollars per annum during the time they shall live separate and apart or until he shall agree to cohabit with her and treat her as becomes a man to treat his wife. VI. For error in adjudging costs and counsel fees against defendant, it not appearing from any finding of fact that he has been in default. And upon said exceptions the appellant will move the Supreme Court to reverse the judgment and direct that the complaint be dismissed."

Pending the appeal the defendant died and the action was continued, by order, against Joseph F. Wallace as his executor. The sixth exception as to costs and counsel fees was not argued, and we suppose that it is not insisted on.

As to the first exception. We regard the provision of the Code (section 289) which requires that the decision of the court shall contain a statement of the facts and the conclusions of law separately, wise and salutary as tending to prevent confusion and to promote clearness. But it has been held that an omission in that regard is not ground for reversal unless it is made to appear that the appellant has suffered prejudice thereby, as it regards the merits of his case. We do not see that such prejudice has resulted in this case. Joplin v. Carrier , 11 S.C. 329; State ex relatione Cathcart v. Columbia , 12 Id. , 393; Bouknight v. Brown , 16 Id. , 166.

The exceptions 3, 4, and 5 complain that on the merits a case for alimony was not made out; that, in truth, instead of the defendant deserting the plaintiff, she deserted him. That was a question of fact, and, after reading the testimony carefully, we cannot say that the decision was unsupported by the evidence. Three grounds were alleged for alimony, viz adultery, cruelty, and desertion; and if either of them...