Fisher v. Fisher.

• Decision Date: 14 November 1903
• Citation: 54 W.Va. 146
• Parties: Fisher v. Fisher.
• Court: West Virginia Supreme Court

54 W.Va. 146

Fisher

v.Fisher.

Supreme Court of Appeals of West Virginia.

Submitted June 13, 1903

Decided November 14, 1903.

1. Divorce A oandoment Desertion.

A decree of divorce for wilful abandoment and desertion for three years will be granted the plaintiff, where it appears that, the defendant was guilty of such desertion and abandonment for three years while he was of sound mind, although subsequently he became insane and at the time of the commencement of the suit and the granting of the decree he. was a lunatic, (p. 148).

Appeal and supersedeas from Circuit Court, Monongalia County.

Action by Lucy A. Fisher against J. W. Fisher. Judgment for defendant and plaintiff appeals.

Reversed.

MoRELAND and Glasscock, for appellant.

McWhorter, President:

This is a suit for divorce brought by Lucy A. Fisher against her husband, Joseph William Fisher, in the circuit court of Monongalia County. The plaintiff filed her bill alleging her marriage with the defendant on the 25th of November, 1893; that a son was born to them on the 8th of October, 1894, who was with the plaintiff and whom she had always maintained and supported; that plaintiff was born in Monongalia County and had always resided therein which was also the case as to the defendant, and that they had last co-habited in that county; that plaintiff had always been a faithful and dutiful wife to her said husband; but that lie had always been cruel and inhuman in his treatment towards her, and in May, 189G, had wholly and wilfully abandoned and deserted her and had ever since abandoned and deserted her; that within the last four or five months defendant had been adjudged insane and committed to the Hospital for the Insane, in Lewis County, where he still was and would likely remain for and during the remainder of his life time and alleged that such willful abandonment and desertion on his part was committed and was continued for more than three years while he was sane, and long before any signs of insanity; that he had no property, personal or real so far as she knew, and prayed she might be allowed to file her bill and that said Joseph W. Fisher be made defendant thereto; that a guardian ad litem be appointed to defend his interests and that plaintiff be granted a divorce and that she be given the custody, care, maintenance, and education of her said child, and for general relief.

R. H. Brown was duly appointed guardian ad litem, of the defendant and filed his answer to the bill. Plaintiff filed with her bill duly certified copies of the marriage license and of the minister's return certifying the marriage, from the records of the circuit court of Garrett County, Maryland, wherein the marriage was consummated, duly authenticated. Depositions were taken upon due notice and in the presence of the guardian ad litem. The depositions of Lucy A. Fisher, Estella Myers, Marion A. Laughlin and T. Mc. Gallagher, which depositions were filed and read in the cause and sustained the allegations of plaintiff's bill.

And on the 14th day of June, 1902, the following decree was rendered: "This cause came on this day to be heard upon the bill of complaint of the plaintiff and the exhibit filed therewith, process duly served upon the defendant, and the answer of R. H. Brown, guardian ad litem for the defendant, the general replication of the plaintiff thereto, and depositions taken on behalf of the plaintiff in the presence of the guardian ad litem, and was argued by counsel. And it appearing to the court that the plaintiff is not entitled to the relief' prayed for, it is adjudged, ordered and decreed that the bill be dismissed."

From this decree the plaintiff appealed, insisting that the court erred in holding and adjudging that plaintiff was...