Hubbard v. Hubbard

Decision Date05 November 1889
Citation74 Wis. 650,43 N.W. 655
PartiesHUBBARD v. HUBBARD.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Fond du Lac county; N. S. GILSON, Judge.

This is an action for a divorce. The cause of action alleged in the complaint is for cruel and inhuman treatment on the part of the defendant. The answer is lengthy, and consists of admissions and denials; and, as a separate answer and counter-claim, alleges numerous acts of misconduct on the part of the plaintiff; and among other things, and for a further answer, alleges, upon information and belief, several acts of adultery committed by the plaintiff with divers persons, and at divers times and places, particularly named therein. On motion of the plaintiff, the court struck out of the answer, as irrelevant, all that portion thereof relating to such adultery. From that order the defendant brings this appeal.Gerpheide & McKenna, ( William D. Conklin, of counsel,) for appellant.

A. M. Blair, for respondent.

CASSODAY, J., ( after stating the facts as above.)

In support of the order, it is claimed that adultery is not pleadable as a mere defense or bar to the action, as it is said to be here pleaded. It has recently been held by this court that, where it is shown that each party has been guilty of an offense which the statute has made a ground for divorce in favor of the other, the court will not grant relief to either. Pease v. Pease, 72 Wis. 136, 39 N. W. Rep. 133. In that case the wife was found guilty of adultery, and the husband was found guilty of cruel and inhuman treatment, which was alleged by the wife in her answer merely as a defense and bar to the action. The same principle has been sanctioned in a recent English case. Otway v. Otway, L. R. 13 Prob. Div. 141. This is on the theory that “a judicial separation can only be granted where the petitioner comes to the court with a pure character, and is free from all matrimonial misconduct.” Id. The order of the circuit court is reversed, without costs, and the cause is remanded for further proceedings according to law.

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9 cases
  • Brown v. Salt Lake City
    • United States
    • Utah Supreme Court
    • 9 Enero 1908
  • Stoneburner v. Stoneburner
    • United States
    • Idaho Supreme Court
    • 27 Diciembre 1905
    ... ... App. 131, 29 P. 812, Hoff v. Hoff, 48 Mich. 281, 12 ... N.W. 160; Pease v. Pease, 72 Wis. 139, 39 N.W. 133, ... 134; Hubbard v. Hubbard, 74 Wis. 650, 43 N.W. 655, 6 ... L. R. A. 58; Otway v. Otway, L. R. 13 Prob. Div ... 141; Clapp v. Clapp, 97 Mass. 531; Handy v ... ...
  • Smith v. Smith
    • United States
    • Kentucky Court of Appeals
    • 11 Junio 1918
    ... ... R. A. 385; Mathewson v. Mathewson, 18 R.I. 456, 28 ... A. 801, 49 Am. St. Rep. 782; Hale v. Hale, 47 Tex ... 336, 28 Am. Rep. 294; Hubbard v. Hubbard, 74 Wis ... 650, 43 N.W. 655, 6 L. R. A. 58; Nye's Appeal, 126 Pa ... 341, 17 A. 618, 12 Am. St. Rep. 873; Ellett v ... Ellett, ... ...
  • Gray v. Gray
    • United States
    • Wisconsin Supreme Court
    • 10 Octubre 1939
    ...action, and the defendant because of his misconduct during the separation. Pease v. Pease, 72 Wis. 136, 39 N.W. 133;Hubbard v. Hubbard, 74 Wis. 650, 43 N.W. 655, 6 L.R.A. 58;Voss v. Voss, 157 Wis. 430, 147 N.W. 634; Hiecke v. Hiecke, supra. But the denial of a divorce to the defendant would......
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