Hodgkinson v. Hodgkinson

• Decision Date: 03 January 1895
• Docket Number: 5440
• Citation: 61 N.W. 577,43 Neb. 269
• Parties: GEORGE HODGKINSON ET AL. v. SARAH HODGKINSON
• Court: Nebraska Supreme Court

61 N.W. 577

43 Neb. 269

GEORGE HODGKINSON ET AL. v. SARAH HODGKINSON

No. 5440

Supreme Court of Nebraska

January 3, 1895

ERROR from the district court of Nemaha county. Tried below before BROADY, J.

AFFIRMED.

E. W Thomas and G. W. Cornell, for plaintiffs in error, cited, as to the wife's right of action: Lynch v. Knight, 9 H L. Cas. [Eng.], 577; Westlake v. Westlake, 34 Ohio St. 621; Mehrhoff v. Mehrhoff, 26 F. 13; 1 Bishop, Marriage & Divorce, sec. 1358; Weedon v Timbrell, 5 T. R. [Eng.], 357; Cross v. Grant, 62 N. H., 675; Bigaouette v. Paulet, 134 Mass. 123; Maxwell, Pleading & Practice, 241; 2 Chitty, Pleading, 314.

Stull & Edwards, contra, cited on the same point: Consolidated Statutes, sec. 1413; Cooley, Torts, 227, note 3; Stewart, Husband & Wife, 59, sec. 1, and 78, sec. 2; 9 Am. & Eng. Ency. Law, 810, and cases cited; Warren v. Warren, 50 N.W. [Mich.], 842; Bennett v. Bennett, 116 N.Y. 584.

OPINION

RYAN, C.

The defendant in error recovered a judgment against plaintiffs in error in the district court of Nemaha county. The cause of action, as stated, was that plaintiffs in error had induced their son, her husband, permanently to abandon the defendant in error, and to refuse to provide for her support. In connection with the history of desertion brought about as aforesaid there were allegations that plaintiffs in error had manifested the most determined and persistent disapproval of becoming grand-parents, and that to prevent this consummation they had induced their son to attempt to procure an abortion, which had failed, whereupon defendant in error was driven from the house of plaintiffs in error, wherein, with her husband, she had previously been living, and the separation and abandonment complained of immediately followed. The evidence was very conflicting, but there was sufficient to sustain the averments of the petition. There was presented in the motion for a new trial a claim that, because of surprise, plaintiffs in error should have been granted a new trial. In support of this claim there seems to have been used certain affidavits, but as there was no identification or preservation of them by bill of exceptions, they cannot be considered. No other error arising during the trial was presented or argued. The giving and refusal to give instructions afford no ground of complaint, for exception was taken only to a refusal to give one instruction requested, and the substantial part of that instruction was embodied in others given by the court on its own motion.

It is contended, however, that this action was not maintainable by the defendant in error, and that in any event a recovery could be had only for the loss of...