Hanks v. Hanks
| Decision Date | 01 September 1920 |
| Docket Number | 1001 |
| Parties | HANKS v. HANKS |
| Court | Wyoming Supreme Court |
Rehearing Denied October 18, 1920, Reported at: 27 Wyo. 65 at 71.
APPEAL from the District Court, Sweetwater County; HON. JOHN R ARNOLD, Judge.
Action by Laura A. Hanks against Walter Hanks, Sr., for divorce. There was a judgment for plaintiff and defendant appeals.
Affirmed.
Brown and Denise, for Appellant.
The petition alleges several causes of action, and the Court erred in denying defendant's motion that they be separately stated and numbered; an allegation of ground for divorce in the language of the statute is sufficient; (Bates P & P 1488-1489; Reading v. Reading, 30 P. 803;) habitual drunkenness is a specific ground of divorce; Sec 3924 C. S. Sub. Div. 5; cruelty is also a specific ground for divorce; if two or more grounds of divorce may be alleged under the head of indignities, then each and all of the II specific grounds of divorce may be so included in one cause of action; causes of action defined Pomeroy C. Rem. 347; the statute, Sec. 4380 C. S. requires each cause of action to be separately stated and numbered; the grounds should be in separate counts, (9 R. C. L. 420; Pomeroy C. D. Rem. 336): the petition states three causes of action in one count; the motion to strike portions of the petition should have been sustained; personal indignities and extreme cruelty are distinguished, (14 Cyc. 599-625): the early rule required actual violence; under the modern rule, any unjustifiable conduct, seriously impairing bodily health or endangering life constitutes cruelty; habitual drunkenness within the meaning of divorce statutes is the existence of a confirmed habit of becoming intoxicated, and an inability to control the appetite; there is no similarity between cause for divorce on the ground of habitual drunkenness and a cause on the ground of indignities or extreme cruelty; evidence of habitual drunkenness will not establish an allegation of extreme cruelty, 9 R. C. L. 336.
T. S. Taliaferro, Jr., and W. A. Muir, for Respondent.
The decree is based upon indignities rendering plaintiff's condition intolerable a cause of action sufficiently pleaded; appellant has not been prejudiced; pleadings are liberally construed; Sec. 4416 C. S. errors or defects not affecting substantial rights are disregarded, Sec. 4438 C. S. (Bear v. Knowles, 36 C. S. 45; Goldberge v. Utley, 60 N.Y. 427); the objections could have been made to the admission of immaterial evidence at the trial, and not having been made is conclusive that appellant was not prejudiced. (Cribb v. Hudson, 16 P. 10201; Mansfield v. Shipp, 27 N.E. 428; Mullockey v. Manker, 170 P. 32; Metcalf v. Gilbert, 19 Wyo. 342; Williams v. U. P. R. R. Co., 20 Wyo. 403); prejudice might follow in some cases if separate causes of action are not separately stated and numbered; (Schuyler v. Balloug, 40 N.W. 412); there is but one cause of action here; drunkenness is an indignity; (Barber v. Barber, 14 L. R. 375; Dawson v. Dawson, 23 Mo.App. 169; Ryan v. Ryan, 47 P. 101).
Brown and Denise, in Reply.
The error complained of was clearly prejudicial, (2 Ency P & P 532; 2 R. C. L. 196; 3 Cyc. 386); it is sufficient if a party may have been prejudiced; (Jones v. Bangs, 40 O. S. 139). There is no presumption that error was harmless; (Dubois v. Perkins, 21 Ore. 189; Stark v. Wellman, 96 Cal. 400).
TIDBALL, District Judge. BEARD, C. J., and POTTER, J., concur. Blydenburgh, J., being unable to sit in this case, Hon. V. J. Tidball, Judge of the Second Judicial District, was called in as a member of the court and sat in his stead.
This is an appeal from the judgment of the District Court of Sweetwater County, granting a divorce to Respondent, who was plaintiff below. It is claimed that the court below erred in two particulars, namely, in denying the motion of defendant to require plaintiff to separately state and number her separate causes of action set forth in her petition; and in denying the motion of defendant to strike certain words and clauses from plaintiff's petition. That portion of plaintiff's petition to which the motions of defendant were directed is as follows:
"The defendant has offered such indignities to the plaintiff as to render her condition intolerable as the wife of the defendant; that such indignities consist in habitual drunkenness extending over a period of more than five years, accompanied with wanton and extreme cruelty to the plaintiff in quarreling with and nagging at the plaintiff whenever they are together, or an opportunity arises so to do, so that the last five years have been ones of constant irritation, neglect, indifference, quarreling, abuse, contempt, exhibited by the defendant toward the plaintiff, which with the drunkenness of the defendant, and the lack of consideration, love or affection exhibited towards the plaintiff, has rendered the plaintiff's condition intolerable."
To this petition the defendant filed a motion to require the plaintiff to separately state and number her causes of action, the defendant claiming that in the petition were joined an alleged cause of action for indignities, an alleged cause of action for habitual drunkenness, and an alleged cause of action for extreme cruelty. This motion of defendant's was denied by the trial court and the defendant was given an exception to the court's ruling. This is the first error assigned by the defendant in this court.
After the above motion of defendant was denied by the trial court, the defendant filed another motion praying that the court strike from plaintiff's petition the following matter: "that such indignities consist in habitual drunkenness extending over a period of more than five years", and also the words "wanton and cruelty", for the alleged reason that such matter constituted no part of the plaintiff's cause of action. This motion was also denied by the trial court, and after the trial court had denied the second of defendant's motions, defendant refused to plead further, and the case proceeded to final judgment upon the evidence of the plaintiff alone. Such denial is the second error assigned by appellant in this court.
The Wyoming Compiled Statutes, Section 3924, provide as follows:
"A divorce from the bonds...
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