Engleman v. Engleman

• Decision Date: 27 September 1899
• Citation: 97 Va. 487,34 S.E. 50
• Parties: ENGLEMAN. v. ENGLEMAN.
• Court: Virginia Supreme Court

34 S.E. 50

97 Va. 487

ENGLEMAN.

v.ENGLEMAN.

Supreme Court of Appeals of Virginia.

Sept. 27, 1899.

DIVORCE — ADULTERY — EVIDENCE — ATTORNEY'S FEE—APPEAL—PRESUMPTION.

1. Failure to exclude the evidence of defendant in a divorce case will not be held error, there being nothing to warrant the conclusion that the lower court considered it, and the presumption being that it did not.

2. Decision that defendant was not guilty of adultery is proper, she having established a virtuous character by those who have known her longest and best, and the only evidence to establish the charge being testimony of G., a married man, and laborer on the farm of theparties, who is shown to have offered his testimony for sale that he had intercourse with her, and that of G.'s sister that she saw such intercourse on one occasion, being near enough to "spit on them" (the offending parties), but did not make known her presence.

3. Allowance will not be made, on appeal, to defendant in a divorce case, to pay counsel fees, in the absence of anything to show the financial ability of complainant, but the allowance made below will be held sufficient.

Appeal from circuit court, Rockbridge county.

Suit by L. D. Engleman against Mollie E. Engleman. Decree for defendant. Complainant appeals. Affirmed.

G. D. Letcher and J. P. Moore, for appellant.

P. T. Glasgow and G. M. Bell, for appellee.

HARRISON, J. This suit was brought by the appellant in the circuit court of Rockbridge county to obtain a divorce from the appellee. The circuit court held that the appellant had failed to make a case entitling him to the relief asked, and dismissed his bill. From this decree an appeal was allowed by one of the judges of this court.

The first assignment of error is that the court erred in not excluding the testimony of the appellee. It appears that the depositions of both the appellant and appellee were taken in the cause, while it is conceded here by counsel on both sides that such evidence is wholly incompetent and illegal. There Is nothing in the record to warrant the conclusion that the circuit court considered this illegal evidence, and the presumption is that it did not. The conclusion of this court will be based alone upon the legitimate evidence in the case, and therefore no injury can result from the presence in the record of the deposition of either the appellant or the appellee.

The second assignment of error is that the circuit court did not exclude certain letters produced by the appellee, and filed in the record, purporting to be letters written by her to appellant. In the view we take of this case, it is unnecessary to consider whether these letters are legal evidence or not. The case of the appellee does not rest upon these letters, and their consideration is not necessary in determining the issues involved.

The third assignment of error is that the court erred in decreeing alimony pendente lite, contrary to the provisions of the contract and deed of trust of August 10, 1895.

At the date of the deed mentioned it is clear that appellee did not have in view a suit by her husband for divorce. The record In this case, covering nearly 600 pages of printed matter, discloses a bitter assault upon the character of the appellee, prosecuted with relentless disregard of her...