Cochran v. Cochran

• Decision Date: 11 November 1904
• Docket Number: 14,026 - (101)
• Citation: 101 N.W. 179,93 Minn. 284
• Parties: ALMIRA COCHRAN v. JAMES Z. COCHRAN
• Court: Minnesota Supreme Court

101 N.W. 179

93 Minn. 284

ALMIRA COCHRAN v. JAMES Z. COCHRAN

Nos. 14,026 - (101)

Supreme Court of Minnesota

November 11, 1904

Appeal by defendant from an order of the district court for Wright county, Giddings, J., denying a motion for a new trial. Affirmed.

SYLLABUS

Divorce -- Cruelty.

In an action by the wife for a divorce, held --

1. Condoned cruelty will be revived by subsequent misconduct of the guilty party of such a nature as to create a reasonable apprehension that the cruelty will be repeated, even if such misconduct be not in itself sufficient to warrant a divorce.

2. The trial court did not err in denying defendant's motion for a change of the place of trial of the action.

3. The evidence sustains the finding of the court to the effect that defendant was guilty of cruel and inhuman conduct, and as to the value of his property.

4. It is not necessary to make proof of the value of the services of counsel in a divorce case where an allowance therefor is made at the conclusion of the trial, for the court may determine the matter from its own experience and the circumstances as disclosed by the record.

R. L Penney, for appellant.

Frank D. Larrabee and J. J. Woolley, for respondent.

OPINION

START C.J.

Action by the wife for a divorce on the ground of cruel and inhuman treatment by her husband.

It was commenced in the district court of the county of Wright on April 10, 1903. The defendant made a motion for a change of the place of trial to the county of Hennepin on the ground that the county designated in the complaint was not the proper county, and for the convenience of witnesses. The motion was denied, and a trial resulted in findings of fact by the trial court in favor of the plaintiff and an order directing judgment in her favor granting her an absolute divorce and for the payment to her by the defendant of the sum of $7,263.33 as permanent alimony and $200 for the fees of her attorney for his services in the action. The defendant made a motion for a new trial, and appealed from an order denying it.

1. The defendant's first alleged error is that the trial court erred in denying the defendant's motion for a change of the place of trial and in finding that plaintiff was a resident of the county of Wright when this action was commenced. If the plaintiff in an action for a divorce be a resident of the state, the fact that the action is brought in a county in which the plaintiff does not reside is not jurisdictional. The case of Thelen v. Thelen, 75 Minn. 433, 78 N.W. 108, was one in which the trial court found that the plaintiff was not a resident of this state -- a jurisdictional fact.

The finding of the trial court that plaintiff was a resident of the county of Wright when the action was commenced is supported by the evidence. It shows that for many years next before the commencement of the action she and her husband were residents of the county of Wright, and had been for some twenty seven years, and that on February 22, 1903, she left her home on account of her husband's misconduct, and went to the city of Minneapolis, and has since resided there, part of the time with her daughter and the rest of the time with her sister. This action was commenced six and a half weeks after she left home. This evidence falls far short of conclusively establishing that the plaintiff had acquired a domicile at Minneapolis; on the contrary, the fair inference is that her stay there was not with any intention of making it her permanent abode, but a temporary necessity. The motion for a change of the place of trial because the action was not brought in the proper county was correctly denied, for the reason that it does not appear from the record that any demand for such change was made before answering, and, further, it did not appear from the moving papers that the plaintiff was not a resident of the county of Wright. Nor did the trial court abuse its discretion in denying the motion on the ground of the convenience of witnesses.

2. The second alleged error to be considered is that the finding of the trial court that the defendant was guilty of cruel and inhuman treatment of the plaintiff is not sustained by the evidence. The evidence tends to show that the parties were married on July 12, 1876; that from two years after their marriage to September, 1895, the defendant repeatedly, in the presence of their children, used towards the plaintiff profane and obscene...