Connolly v. Connolly

• Decision Date: 21 March 1914
• Parties: CONNOLLY v. CONNOLLY.
• Court: South Dakota Supreme Court

33 S.D. 346

146 N.W. 581

CONNOLLY

v.CONNOLLY.

Supreme Court of South Dakota.

March 21, 1914.

Appeal from Circuit Court, Perkins County; Clay Carpenter, Judge.

Action for divorce by Olive Connolly against Cornelius B. Connolly. Judgment for plaintiff, and defendant appeals. Reversed, and action dismissed.Mahoney & Schubert, of La Crosse, Wis., and P. J. Tscharner and W. D. Hickman, both of Lemmon, for appellant.

R. J. Murphy, of Lemmon, for respondent.

SMITH, P. J.

Action for divorce on the ground of habitual intoxication and failure to support. Judgment was entered October 30, 1912, granting plaintiff an absolute divorce, awarding her custody of the children, and setting off to her certain real property in this state. From the judgment and an order denying motion for a new trial, defendant appeals.

Appellant assigns as error insufficiency of the evidence to sustain the findings of the trial court. The finding against which this objection is most strongly urged is “that plaintiff is now, and for more than a year immediately preceding the commencement of this action has been, a bona fide resident of Lemmon, county of Perkins, South Dakota.” There is practically no conflict in the evidence relating to plaintiff's alleged residence in this state.

Plaintiff and defendant were married in 1901, and immediately took up their residence in La Crosse, Wis., where they lived together as husband and wife until June, 1911. Defendant was employed as a driver in the city fire department. Some time prior to June, 1911, they purchased a home in La Crosse worth about $3,000, which was incumbered by a mortgage for about $1,600. Apparently this indebtedness was found burdensome, and both plaintiff and defendant were earnestly desirous of earning and saving sufficient money to lift it. Plaintiff seems to have had some experience in nursing or as a nurse, and it was arranged between herself and husband that she, with the two children, should go to Lemmon, in this state, where her father and mother were then living, and there secure employment as a nurse, and thus assist in raising money to pay the indebtedness against the home in La Crosse. In the meantime defendant was to continue his employment in the fire department in La Crosse, to earn and save whatever he could. With this understanding, plaintiff left La Crosse in June, 1911, and came to Lemmon.

The printed record does not disclose when this action was begun; but it was tried on the 18th day of October, 1912. Defendant answers, denying the matters alleged as ground of divorce, and specifically denying that the plaintiff had been an actual resident, in good faith, of the state of South Dakota for one year immediately preceding the commencement of the action. Plaintiff herself testified to the agreement with her husband as to the purpose for which she came to this state in June, 1911, admitted that she returned to La Crosse in April, 1912, for a visit of a week or ten days, during which time she lived and cohabited with her husband, and admitted writing numerous letters to her husband, which were received in evidence, and are in the printed record. These letters contain many expressions of affection for her husband, and of a desire to return to her home at La Crosse.

In a letter written in October, 1911, she says: “I will be home some time the last of this week or first of the following. *** Hope you can be home the night I get home and meet me at the train. *** I will be glad to see you and get a good loving.”

In March, 1912, she wrote her husband: “I expect to be home about Saturday or Sunday, unless I get out on another case, so have the lights, gas, and water on.”

In January, 1912, she wrote: “How much money have you saved? and, if I have enough to finish to make the $500, I believe I will come home for the rest of the winter. If I don't go home with Pa, there are some things I want you to send me.”

On January 26,...