Bueter v. Bueter

Decision Date01 May 1890
Citation45 N.W. 208,1 S.D. 94
PartiesBUETER, Plaintiff/Respondent, v. BUETER, Defendant/Appellant.
CourtSouth Dakota Supreme Court

BUETER, Defendant/Appellant. South Dakota Supreme Court Appeal from District Court, Lawrence County, SD Hon. Charles M. Thomas, Judge Affirmed Granville G. Bennett Attorney for appellant. McLaughlin & Steele Attorneys for respondent. Submitted Feb. 14, 1890; Opinion filed May 1, 1890


This was an action brought by respondent against appellant in the district court of Lawrence county, to set aside and annul certain articles of separation between said parties, who are husband and wife, and for other specific relief, hereinafter noticed, alleging in her complaint that she signed the articles reluctantly and unwillingly, under menace and duress exercised towards her by appellant; that she revoked and renounced said articles of separation, and claims all her rights as the lawful wife of appellant, and offers to return and be reconciled to him whenever it will be safe for her to do so. The complaint further charges extreme and repeated acts of violence towards respondent, for a long time before and at the time of signing such articles; alleges that she is old, infirm, and destitute, and that appellant is in possession of all the property accumulated by their joint industry and economy. The other specific relief asked for was a decree requiring the appellant to pay her monthly a reasonable allowance for her support, and a reasonable sum as attorney’s fees and expenses of the action. The appellant answered, denying all the allegations of ill treatment and violence, and of menace and duress as to the execution of the articles of separation, and set up such articles as a defense to the action. Upon the trial the court decreed the articles of separation null and void, because obtained from respondent by menace and duress; and, further, that appellant should pay to respondent, or to the clerk of the court for her use, for her support and maintenance, the sum of $10 per month, until the further order of the court, and the sum of $150 for attorney’s fees in the action. From this judgment and decree the appellant appeals.

All the alleged errors which are brought to the attention of this court by the assignment and the record may be considered under two distinct heads:

(1) Is the evidence sufficient to support and justify the court in its decree setting aside and annulling the articles of separation between appellant and respondent? and, if so,

(2) had the court jurisdiction to entertain so much of this action as sought to compel appellant to make an allowance for the support of respondent?

Does the evidence show that these articles of separation were executed by respondent under the coercion of menace and duress? “Duress” is declared by our statute (Section 3504, Comp. Laws) to consist in (1) unlawful confinement of the person of the party, or of husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband or wife; (2) unlawful detention of the property of any such person; or (3) confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harrassing or oppressive.

By Section 3505, menace consists in a threat (1) of such duress as is specified in the first and third subdivisions of the last section; (2) of unlawful and violent injury to the person or property of any such person as is specified in the last section; or (3) of injury to the character of any such person.

Much of the evidence tending to show violent and active cruelty towards respondent by appellant did not immediately connect such acts with the execution of this agreement. Indeed, many of them occurred months before, and had no relation to the agreement, or its execution, and can only be considered in connection with their probable, or, rather, inevitable, effect upon respondent, in inspiring a fear of their repetition. A woman who had never known or felt her husband’s hand in violence against her would doubtless be less moved by an angry threat than one who, remembering the experience of the past, would at once connect the threat with its execution, and instinctively measure its meaning by the recollection of the bruises she had before received. The testimony of the respondent, Margaret Bueter, Mrs. Rewman, her daughter, and at least five or six other witnesses, establishes beyond doubt the violent and wicked conduct of appellant towards respondent. He had himself educated her to know and appreciate the force and meaning of his threats. The proof of his general ill-treatment of respondent is so abundant and convincing that we shall not refer to it in detail. In the examination of respondent, the following questions and answers occur:

“Question. What was his conduct just before that, [signing articles of separation,] for some days, toward you?

Answer. Cruelness, meanness and violence. He kicked me with his boots, that I was black and blue all over, days and days before,—you might say for months.

Q. What was the last time before signing; how long before?

A. That same morning.

Q. (By the Court.) Did he make any threats against you?

A. Yes, sir; he did.

Q. (By the same.) In order to make you sign it?

A. Yes, sir.

Q. (By the same.) What threats did he make against you? Did he threaten to do any violence to you if you did not sign it?

A. Yes, sir.

Q. (By the same.) What did he say?

A. He knocked me down, and kicked me.

Q. (By the same.) Did he kick you because you would not sign this writing?

A. Yes, sir; that is what he did.”

We make the following extract from the testimony of Mrs. Rewman:

“Question. What took place between them as to the signing of that [articles of separation] in your presence?

Answer. I know he abused her when she said she would not sign it.

Q. What do you mean by abuse?

A. Well, he slapped her; and pulled her around.

Q. Do you know who brought these articles of separation to the house?

A. No, sir; I do not. I first saw them—papa handed them to me and asked me to read them to mama. I read them to her. I started to read them. I don't know whether I finished them or not; and she said she would not sign them at the time I read it. My mother cannot read English writing. I don’t think I finished reading them. I read over half through, though. She listened to it, and she said she wouldn't sign them, and did not care to hear any more after she had heard half of it.

Q. … Tell the judge why she signed the articles after her expressing her unwillingness.

A. Because there was not any peace at home unless she would sign them,—to make peace she signed them. There would be no peace at the house unless she signed them.

Q. (By the Court.) How long after they were brought to the house was it before she signed them?

A. It was two or three days. I think he brought them here on Tuesday, and they were signed on Thursday, I think.

Q. During the interval from the time they came to the house until they were signed by your mother, state what you know about any pressure being brought to bear upon her, either by violence or otherwise, to induce her to sign them.

A. I know he kicked her once when they quarreled about her not signing the paper, and she said she would not sign it, and in the evening of that night, before she signed them they were quarreling, and he slapped her and abused her.

Q. What was the condition of your mother at the time she signed the paper? Was she in good health or unwell?

A. She was feeling very poorly."

There is considerable other testimony in the same line, though possibly not quite so directly connected with the execution of these papers; and while we are not disposed to limit the force, as evidence, of the certificate of the officer who took respondent’s acknowledgment, and while her evidence cannot be taken to impeach his certificate, it strongly corroborates the testimony of respondent and her witnesses as to her reluctance to signing the agreement. He says there was much contention and angry talk between them, and that he must have been there an hour, at least, before she agreed. Without more particular discussion, we content ourselves with saying generally that the evidence bearing upon this immediate question, carefully read and thoughtfully considered, impresses us as it did the trial court; and we are fully convinced that the execution of the articles of separation of April 15, 1884, by the respondent, was caused by threats of bodily injury, and accomplished by menace, as alleged in the complaint.

Having reached the conclusion that the court below was right in annulling the articles of separation, we approach the next question with more reluctance, because it involves a question of jurisdiction never before, to our knowledge, presented to the courts of this state or territory. The proposition is clean cut, and, plainly stated., is this: Can a wife, justified by the conduct of her husband towards her in leaving her home, maintain an independent action against her husband for her maintenance? And can a court of equity entertain such an action and by its decree compel the husband to make provision for her support during such separation? It must be conceded that little support is found for such an action in the books of the text-writers and the adjudications of the courts, in number, at least, preponderate against it. The question is important. It is squarely presented in this case, and it must be answered.

Both at common law and under our statute the wife is entitled, by virtue of the marriage contract, to support and maintenance from her husband, and he, in turn. is under obligations to supply such support and maintenance, commensurate with his ability, until relieved from such duty, either by the law, or by the voluntary act of the parties to the contract. Section 2588, Comp. Laws. But while this mutual and correlative duty and right, as between husband and wife, have been recognized by the courts from an early day,...

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