Harper v. Harper

• Decision Date: 31 January 1860
• Citation: 29 Mo. 301
• Parties: HARPER, Plaintiff in Error, v. HARPER, Defendant in Error.
• Court: Missouri Supreme Court

29 Mo. 301

HARPER, Plaintiff in Error,

v.HARPER, Defendant in Error.

Supreme Court of Missouri.

January Term, 1860.

1. Where a wife seeks a divorce from her husband she must separate herself from his bed; she can not expect to maintain her suit and share his bed at the same time.

2. Courts will not grant divorces to those who, by a long course of ill-advised and imprudent conduct, have produced such a state of alienation of feeling as would, if unexplained, seemingly warrant a divorce.

Error to Jackson Circuit Court.

It is deemed unnecessary to set forth the facts more fully than they appear in the opinion of the court.

Chrisman & Comingo and Smart & Sheley, for plaintiff in error.

I. The charge of adultery made by a husband against a wife is such an indignity as will authorize a divorce. (19 Mo. 355; R. C. 1855, tit. Divorce; 5 Blackf. 81.) Although plaintiff remained with defendant after the charges of infidelity, it does not amount to a condonation. (6 Mars. 69; 6 Barr, 449; Bishop on Mar. & Div. § 368, 371; 7 Paige, 60.) Before defendant could legally avail himself of any testimony amounting to recrimination, or tending to show it, he must specifically plead it. (Bishop on Mar. and Div. § 408; 4 Paige, 432.) The court, therefore, erred in receiving the testimony of Beamer and Twyman. Recrimination to be a bar must be such as to constitute a proper basis for a judicial decree. (10 Calf. 257; 12 Mo. 53; Bishop, § 407.)

Hovey & Hicks, for defendant in error.

I. Plaintiff was not the innocent and injured party. The evidence sustains the decree. (See 28 Mo. 592; 27 Mo. 383.)

SCOTT, Judge, delivered the opinion of the court.

This is a proceeding instituted by the plaintiff in order to obtain a decree from her husband, the defendant, from the bonds of matrimony.

From the zeal manifested by those engaged in the management of the cause, we infer it is one in which the parties feel a deep interest, and we have given it that deliberation its importance claims from us. This lady acted unwisely in placing herself under the direction and control of others in instituting this suit. She must have known that, in the event of such a proceeding, a separation from the bed and board of her husband was indispensably necessary. She could not expect to live in the house of a husband from whom she was seeking a divorce, and that, too, on the ground that he rendered her condition intolerable. If the husband's cruelty drives his wife from his house, the law sends her out with credit for all that may be necessary for a support according to her husband's state and expectations in life. Knowing this, how could she expect that the courts would not mistrust her sincerity when she complained that her husband rendered her condition intolerable, if, when the officer of the law went with her process against her husband he should summon him at a late hour of the night from her bed. How so revolting a transaction occurred is nowhere explained. There is no pretence that there was any force or authority of the husband exerted in order to compel the stay of the plaintiff at his house.

We are not of the opinion that the plaintiff has made out a case for a divorce. She seems to have had an agency in bringing about the state of which she complains. That lively sensitiveness on the subject of her reputation for virtue hardly corresponds with the obstinacy of her conduct towards the object of her husband's...