Carr v. Carr

• Citation: 6 Ind.App. 377,33 N.E. 805
• Parties: CARR v. CARR.
• Decision Date: 28 March 1893
• Court: Court of Appeals of Indiana

6 Ind.App. 377

33 N.E. 805

CARR

v.CARR.

Appellate Court of Indiana.

March 28, 1893.

Appeal from circuit court, Monroe county; R. W. Miers, Judge.

Action by Permelia Carr against William Carr to obtain support for herself and minor children from defendant, who is plaintiff's husband. From a judgment in plaintiff's favor, defendant appeals. Affirmed.

Fulk & Carr, for appellant. John R. & R. H. East, for appellee.

LOTZ, J.

The appellant and appellee are husband and wife. The wife commenced this proceeding against her husband to obtain provision for the support of herself and infant children of herself and husband. There was a trial by the court, and a finding and judgment for appellee in the sum of $75 only. The errors assigned in this court are (1) that the trial court erred in overruling the demurrer to the first paragraph of amended complaint, (2) and in overruling the motion for a new trial. We will consider these assignments in their order.

The substantial averments of the first paragraph of the amended complaint are that the plaintiff and defendant were duly married in Monroe county, Ind., on the ------ day of ------, 18 ---; that they had born to them two children,-John W. Carr, now 15 years of age, and Ida M. Carr, now 21 years of age,-both of whom, since their birth, have lived, and are now living, with the plaintiff; that in the year 1876 the defendant, without cause, abandoned this plaintiff and her two small children, and has also renounced the marriage covenant, and refuses to live with them, and has left them without means of support; that the plaintiff is destitute of real or personal property; that the defendant is the owner of a good and valuable farm in Monroe county, and a large amount of personal property, all of which is specifically described, and its probable value stated; “that the plaintiff is poor, and lives on a farm, and her mode of life is actual labor for her support, while the defendant is living a prosperous farmer's life, but living in adultery with another woman. Wherefore plaintiff prays judgment for the sum of $2,000, and that the lands and property of the defendant be sold in satisfaction of such judgment, and all other proper relief.” Appellant assails this pleading, asserting that its averments are not sufficiently specific to charge either desertion or a renunciation of the marriage covenant.

Section 5132, Rev. St. 1881, provides that “a married woman may obtain provision for the support of herself and infant children of herself and husband in her custody in any of the following cases: First, where the husband shall have deserted his wife and children without cause, not leaving her or them sufficient provision for her or their support; * * * fourth, where a married man renounces the marriage covenant, and refuses to live with his wife in the conjugal relation, by joining himself to a sect or denomination, the rules and doctrines of which require a renunciation of the marriage covenant, or forbid a man and woman to dwell and cohabit together in the conjugal relation according to the true intent and meaning of the institution of marriage.” The statute uses the language, “shall have deserted his wife,” while the pleading uses the words, “abandoned this plaintiff.” The word “deserted,” as used in the statute, and the word “abandoned,” as used in the pleading, convey the same idea; that is, the act of willfully leaving the wife, with the intention of causing a palpable separation,-a cessation from cohabitation. The rule of pleading requires that the allegation must individualize and particularize the matter which constitutes the basis of the action so far as to inform the opposite party of what will be brought against him on the trial. He is entitled to this, that he may prepare his defense. Facts only are to be stated, and not evidence, arguments, inferences, or matters of law. 1 Chitty, Pl. 214. But the allegation should not be so general as to admit of almost any proof. Id. 252. These two extremes must be avoided. Mining Co. v. Watts, 33 N. E. Rep. 662, (decided at this term of this court.) The allegation here is that the defendantabandoned the plaintiff. Is this too general? We think not. The word “desert” or “andon” conveys the full idea of the act of desertion, and no circumlocution can make it plainer. The other allegation, that the defendant has renounced the marriage covenant, is too general. To renounce, disclaim, disown, or abjure the marital covenant, unaccompanied by some overt act on the part of the husband, would be only an idle declaration. The renunciation or refusal to live with the wife in the conjugal relation must be accompanied by the act of joining himself to a sect or denomination whose rules and doctrines forbid a man and woman to dwell together in the conjugal relation. In the absence of such an averment, we think this assignment of the breach of marital duties insufficient.

There is another seeming objection that might be urged to the complaint, but, as counsel have not made it, we pass it with but little consideration. Section 5133, Rev. St. 1881, says: “The complaint shall also state * * * the sum necessary for the support of the wife and the children, if any there be.” The prayer of the complaint is for judgment in the sum of $2,000, and all other proper relief. The purpose of the action is to obtain provision for the support of the wife. The complaint makes demand for a certain sum. As there can be a recovery only for the sum necessary to the support of the wife and children, it may be fairly inferred that the sum demanded is the necessary sum for that purpose. There are two independent acts that give the wife the right to obtain a support out of her husband's property in cases of desertion. The act in force September 19, 1881, (sections 5132-5138, inclusive, Rev. St. 1881,) and the act of March 7, 1857, (see sections 5139-5141, inclusive, Id.) These acts seem to be wholly independent of each other, and each gives a complete remedy within itself. The complaint is probably good under the last act, although it seems to proceed upon the first. We cannot commend the pleading, but, in the absence of any attack upon it for the last-named reason, we feel constrained to hold that the demurrer was correctly overruled.

The only causes assigned for a new trial are (1) that the finding and decision of the court are not sustained by sufficient evidence; and (2) are contrary to law.

The substance of the plaintiff's testimony is to the effect that she and the defendant were married in 1869, first separated in 1872, became reconciled, and then lived together until 1874, when, by the defendant's immoral conduct with lewd women, he contracted a venereal disease, and inoculated the plaintiff with it, and she, to avoid losing her health entirely, took her two young children, and went to live with a relative. That while she was there the defendant moved to some one of the western states. She was very poor all the time, and was compelled to support herself and children by doing farm work. She had never been divorced from the defendant, although he was living with another woman as his wife. That the defendant was the owner of the property described in the complaint. That she was 65 years old, and was then engaged in working for the neighbors to support herself. Other witnesses corroborated her in every respect, except as to the statement that the defendant communicated to her a venereal disease. The defendant testified that he and the plaintiff were married in 1869; that the plaintiff left him in 1874, and went to live with her son-in-law. They never lived together afterwards. He went to Illinois in 1875, and from there to Missouri. Got married again in 1877. Consulted a lawyer, and was advised that a separation of two years divorced husband and wife. He never got a divorce in court, claimed the woman he was then living with to be his wife, and never had any intention of living with the plaintiff since they parted.

The defendant, in his testimony, did not deny the statement of the...