Gholston v. Gholston

• Decision Date: 30 November 1860
• Citation: 31 Ga. 625
• Court: Georgia Supreme Court
• Parties: GHOLSTON. vs. GHOLSTON.

31 Ga. 625

GHOLSTON. vs. GHOLSTON.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1860.

Divorce, in Madison Superior Court. Tried before Judge Thomas, at the March Term, 1860.

Jane Gholston filed a libel in Madison Superior Court, asking a divorce from James S. Gholston, her husband, on the ground of cruel treatment, alleging: That the said James S. habitually used harsh and indecent language to, and of, the libellant; that he imposed upon her laborious domestic drudgeries, which his pecuniary means and circumstances did not justify; that he encouraged his children to treat her with disobedience and disrespect; that he taunted her with his preference for other, and younger women, and that he attempted illicit intercourse with another woman; that he shook a cowhide over libellant, and actually threw her out of the house; that after repeated incivilities and insults, as well as a disregard of his obligations as a husband, he whipped the libellant with a cowhide, and compelled her to seek safety and refuge elsewhere.

Appended to the libel, is a schedule of the property owned by defendant at the time of the separation, which schedule is verified by the affidavit of the libellant, in which she states: That that portion of said property owned by defendant at the time of the marriage, is worth nine thousand dollars, and that portion owned at the time by the libellant is worth ten thousand.

The defendant, in his answer, denies the allegations of the libel, and resists the application for a divorce.

Inasmuch as there is no allegation in the record that the finding of the jury was contrary to the evidence, it is deemed unnecessary to give the evidence in this statement.

The libellant offered as evidence, the answers of various witnesses, taken by commissioners, some of which were objected to by counsel for the defendant, on the ground that one of the commissioners was the agent of the libellant, and biased in her favor; and that the commissioners consultedanother agent of the libellant during the time the witnesses were answering the interrogatories; and that the answers were not sworn to. Others were objected to, on the ground that the witness\' name was not subscribed to the answers; and that the commissioners had not written their names inside of the package, but simply across the seals on the outside. Others were objected to on the ground: That the names of the commissioners were not inserted in the commission; and that the package was not sealed up with separate seals, but only pasted up, as envelopes usually are; and that there was no seal inside the package, and only the letters "com" written on a line below the commissioners\' names.

All these objections were written on the envelopes containing the testimony, and were dated the 6th of March, 1860, whilst the trial commenced the 9th of March, 1860. None of the objections were determined before the case was submitted to the jury; wherefore, the presiding judge overruled the objections, and admitted the testimony.

The entire charge of the presiding judge, as well as the charges which he refused to give, as requested, and the qualifications which he made to such requests, are all given in the opinion of the Court, and are therefore omitted here.

When the Court concluded the charge, it was about half hour past midnight, Saturday night, or thirty minutes, A. M., Sunday. The Court remarked to the jury that they could consider of their verdict then, or wait in their room till Monday morning before commencing their investigation, just as they liked. The jury then retired and the Court took a recess.

At about three o'clock, P. M., on Sunday (same day) the jury sent for the judge, came down into their box, and informed him that they had agreed upon their verdict. Objection being made to the reception of the verdict.at that time, the jury were ordered back to their room, and on Monday morning following, came into Court with a verdict in favor of the plaintiff for a total divorce, five thousand dollars, and costs, which verdict was then delivered and recorded.

Whereupon, the Court adjourned until the fourth Monday in July thereafter.

During the adjourned term of the Court, which commenced on said fourth Monday in July, the defendant, by his counsel, moved the Court to set aside said verdict, and to grant a new trial, on the following grounds, to wit:

1st. Because the Court erred in permitting the plaintiff to read in evidence, against objection by the defendant, the depositions of Martha and Elizabeth C. Echols, Edna Gentry, Maria Herring, Francis Woods, Henrietta Tiller, and Celia Carrington.

2d. Because the Court erred in ruling that the plaintiff had a right to introduce in evidence her own sayings, spoken at a time when, as the witness, Poss, testified in answer to defendant's question as to his having complained to plaintiff about her marriage with defendant, he told her she ought to have a marriage contract.

3d. Because the Court erred in charging the jury, that what constitutes cruel treatment, in the meaning of the law, is a question of law for the Court.

4th. Because the Court erred in charging the jury, that if a husband inflicts on the wife, by force or violence, bodily pain or suffering, and especially degrading pain or suffering such as cowhiding or whipping, this would be cruel treatment. But this, and such as this, is not all that constitutes cruel treatment. The commission of acts which outrage the feelings of modesty and decency, such as threatening to commit, or attempting to commit, adultery, or cursing, abusing, or using insulting and opprobrious language, when done between husband and wife, whether by the husband to the wife, or by the wife to the husband, and in the knowledge, or coming to the knowledge, of both; these, also, if persisted in and unatoned for, constitute cruel treatment. Now, if you believe from the evidence, that the defendant, previous to the bringing of this suit, has been guilty of either of these kinds of cruel treatment, without sufficient justification, you ought to decree, by your verdict, either a total or conditional divorce.

5th. Because the Court erred in charging the jury, that when a woman sues her husband for a divorce, on the ground of cowhiding or whipping her, he can not justify, by showing opprobrious or abusive language on her part, because it is not like conduct in the language of the law.

6th. Because the Court erred in charging the jury: You will inquire from the whole evidence, do you believe he cow-hided her? If he did, she is entitled to a divorce on that ground alone—no evidence being brought before you of like conduct to that on her part. 7th. Because the Court erred in charging the jury, that all instances of misconduct on his (defendant\'s) part that you believe to be true, from the evidence, ought to be considered by you as to whether you will make the divorce, if granted, more favorable to her (plaintiff).

8th. Because the Court erred in charging the jury, that if they should find a partial divorce, they might give the plaintiff a portion of the property, belonging to the defendant, as her own, to do with as she pleased.

9th. Because the Court erred in refusing to charge the jury in the language requested by the defendant, that, if they believed, from the testimony, that the defendant was guilty of any mistreatment or cruelty towards plaintiff, and that after such treatment or cruelty was brought to her notice, she still voluntarily lived with him, this is evidence going to show that she consented to such treatment or waived her rights under it; and if she did consent to it, or waive her rights under it, then she can not claim a divorce on that ground.

10th. Because the Court erred in refusing to charge the jury, as requested, that if the libellant was consenting tacitly to the whipping defendant gave her—if he gave her any— though such consent was not known to the defendant at the time, then she is not entitled to a divorce for that cause. But the Court, after remarking to the jury that the above was good law, charged them, at the request of plaintiff's counsel, that there is no evidence of any consent in this case.

11th. Because the Court erred in sending out with the jury the written charge—the whole charge being in writing—and all going out together.

12th. Because the case was partly tried upon the Sabbath day—the Court having charged the jury, and the jury having retired and considered and determined upon their verdict on that day.

13th. Because the jury were improperly influenced to agree upon a verdict speedily on Sunday by representations, that unless they should agree speedily, the judge would carry them with him to Elbert county, and that he was making preparations for that purpose.

In support of the 12th and 13th grounds of the motion, defendant's counsel presented the following affidavits:

GEORGIA, Madison County:

Personally appeared in the open Superior Court of said county, William H. Saye and Lorenzo D. Ferguson, who, being duly sworn, depose and say: That they served as special jurors on the trial of the case of Jane Gholston vs. James S. Gholston —Libel for Divorce—tried at the regular March Term, 1860, of said Court, and that it was about half hour past twelve o'clock, A. M., Sunday, when the judge concluded his charge, and the jury retired to consider of their verdict, that said verdict was considered of, determined upon, written out, and signed on Sunday; that previous to their determination upon said verdict, the jury were informed by the officers having them in charge, that unless they should make up their verdict speedily, they would be carried out of the county and kept upon the jury until they should agree; that the judge had so said, and had engaged a conveyance for that purpose; and that said verdict having been so made up and signed, the jury came into Court about three o'clock, P. M., on Sunday, to deliver the same, but that objection being made to the reception of...