Gains v. Gains

• Decision Date: 11 June 1892
• Citation: 19 S.W. 929
• Parties: Gains v. Gains.
• Court: Kentucky Court of Appeals

19 S.W. 929

Gains v. Gains.

Court of Appeals of Kentucky.

June 11, 1892

Appeal from circuit court, Boone county.

"Not to be officially reported."

Cross actions for divorce between Phoebe E. Gains and Ben R. Gains. From decrees granting a divorce to Ben R. Gains, and refusing one to her, Phoebe E. Gains appeals. Affirmed.

LEWIS J.

The parties to this litigation, Ben R. and Phoebe E. Gains, were married March 5, 1878, he being then about 57 years of age and a widower with one child, W. A. Gains, about 25 years old, and she a widow about 41 years of age, having four children,-Ida 19, Minnie 17, Willie 13, and Lucy 10, years old. He was a wealthy farmer, owning about 1,000 acres of very valuable land, whereon he resided, besides a considerable amount of personal property. She then resided in the state of Missouri; owned very little, if any, property and immediately after the marriage went to his farm in Boone county, accompanied by the children, who resided with and were supported by their stepfather until they, respectively married; Willie, the last to do so, marrying in June, 1888. W. A. Gains, his son, married in May, 1878, and, after residing with his father several months, removed to another place on his land, and has continued there ever since. July 2, 1889, Phoebe E. Gains instituted an action against Ben R Gains for divorce from bed and board, and for alimony and support during her natural life out of his estate, alleged by her to be of the value of at least $75,000. She also prayed for an injunction restraining him from selling, conveying, or concealing his property during pendency of the action. The alleged and only statutory ground upon which plaintiff asks the divorce is that almost continuously for six years, and continuously for four years, before commencement of the action, defendant habitually behaved towards her in such cruel and inhuman manner as to indicate a settled a version to her, and to permanently destroy her peace and happiness. The action having been submitted for trial, final judgment was rendered at the September term, 1890, of the court, dismissing the petition. But the clerk of court was directed to tax costs of the action against defendant, the husband, omitting all claims of mileage by witnesses, and for attendance by witnesses, who were not summoned by subpoena to attend before examiners. The defendant was further ordered to pay fees of plaintiff's attorneys to the amount of $250. An appeal from that judgment was taken by the plaintiff, being granted by the clerk of the court of appeals, December 10, 1890, when the transcript was filed. After that judgment was rendered, viz., September 12, 1890, Ben R. Gains instituted a distinct action against Phoebe E. Gains for judgment of divorce from the bond of matrimony, and his restoration to the condition of an unmarried man. The alleged ground of divorce asked for in that action was that May, 1889, she without his fault abandoned him, and had since lived separate and apart from him. The defendant, not denying the abandonment, but alleging in her answer, in substance, that it was the fault of plaintiff, prayed judgment for alimony and reasonable support from him during her life. April 25, 1891, final judgment was rendered in that action, divorcing plaintiff from defendant as prayed for in his petition, but he was adjudged to pay costs of the action, including a fee of $100 to her attorneys. An appeal from that judgment was granted in the lower court, the transcript having been filed in the office of the clerk of the court of appeals. August 15, 1891. The two appeals, being now before this court, will, in accordance with an agreement between opposing counsel, be heard and decided together.

The judgment rendered April 25, 1891, is, to the extent it divorced the plaintiff from defendant, not only conclusive and irreversible, but operated to prevent further prosecution by appellant of her action for divorce from bed and board and alimony. Consequently a reversal of the judgment dismissing the action she...