Dorsey v. Dorsey

• Decision Date: 03 June 1902
• Citation: 29 Ind.App. 248,64 N.E. 475
• Parties: DORSEY v. DORSEY.
• Court: Indiana Appellate Court

29 Ind.App. 248

64 N.E. 475

DORSEY

v.DORSEY.

Appellate Court of Indiana, Division No. 2.

June 3, 1902.

Appeal from circuit court, Floyd county; Wm. C. Utz, Judge.

Action by Mary K. Dorsey against Solomon Dorsey. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

George H. Hester and Jacob Herter, for appellant. Kelso & Kelso, for appellee.

ROBY, J.

Action by appellee against her husband, Solomon Dorsey, the appellant, and the New Albany Hosiery Mills, alleged to have been indebted to the appellant, and against whom a judgment for the payment of $4.50, found to so be due him, was rendered. It declines to join in this appeal. So far as the judgment against it is concerned, no question, therefore, need be deemed.

Appellee's suit was for support. She alleged, among other things, that appellant had deserted her without cause, leaving her without sufficient provision for her support; that he was employed, and able to support her; that she was unable to work for a living by reason of the fact that she had been disabled, her arm being broken by the defendant, her husband; that the defendant has personal property of the value of $300; that the hosiery mills is indebted to him; that she ought to have and that it will require the sum of $5 per week to support her.

The complaint is based upon sections 6977-6982, Burns' Rev. St. 1901. A demurrer was overruled to it, and the first assignment of error is that it does not state facts sufficient to constitute a cause of action. No attack upon the sufficiency of the complaint is made, and the point is therefore waived.

The second assignment of error is based upon the action of the court in overruling appellant's motion for a new trial. The first reason given for a new trial was that the decision of the court is contrary to law. The third reason is that the decision and judgment of the court is not sustained by sufficient evidence. The evidence tends to sustain the averments of the complaint with regard to the treatment of appellee and the charge of desertion. It not only tends to do so, but the testimony of appellant, while denying that he broke her arm, is in part as follows: “I did strike slightly with my open hand. It was because she quarreled with me, and would not let me have any peace. I don't think her eyes were blackened.” He also says: “I never hit her with my fist at the time spoken of by Mrs. Hommerlein and Mrs. Kodalle.” In the absence of other denial, it would...