Leonard v. Leonard

• Citation: 142 S.W. 1133,101 Ark. 522
• Parties: LEONARD v. LEONARD
• Decision Date: 08 January 1912
• Court: Supreme Court of Arkansas

142 S.W. 1133

101 Ark. 522

LEONARD v. LEONARD

Supreme Court of Arkansas

January 8, 1912

Appeal from Independence Chancery Court; George T Humphries Chancellor; affirmed.

STATEMENT BY THE COURT.

This is an action by appellee against appellant for divorce, the complaint alleging, among other things, adultery on the part of appellant with Pearl and Wretha Gilbert and Lillie Flowers; also indignities on the part of appellant towards appellee rendering her condition in life intolerable.

The appellant denied each of the allegations of the complaint and alleged that the women whom he had in his house had been doing his cooking, washing and housework, which he was of necessity compelled to hire done after his wife left him. He set up that the plaintiff, appellee, agreed with defendant that for and in consideration of the sum of $ 25 she would forever abandon him and release all and singular her claim to any and all property, and that she signed a written release to that effect, voluntarily and with full knowledge of all its provisions and its effect; that said sum of $ 25 was paid and accepted in pursuance of the agreement.

The court granted a decree of divorce on the ground that appellant had committed adultery with Pearl and Wretha Gilbert. At the time the decree of divorce was granted the court appointed a master to take evidence to ascertain the amount of appellant's estate, and ordered that, if it should be ascertained that same is not susceptible of division, to report same to the court "to the end that if necessary, an order of sale be made." Exceptions were duly saved to the decree, and an appeal was prayed and granted, and appellant filed in due time a supersedeas bond.

Thereafter on June 10, 1911, upon the report of the master being made the court ordered and decreed "that plaintiff have and recover judgment against the defendant" for certain lots in the city of Batesville, and divesting all right, title and interest in said property out of defendant and vesting it in the plaintiff for her natural life, and further decreed "that plaintiff have and recover judgment of and from the defendant, N. B. Leonard, the sum of $ 347.03, with 6 per cent. interest from date until paid." This personal money judgment was upon the report of the master that defendant was the owner of personal property of the value of $ 1,041.10, which was not susceptible of division in kind.

On the 4th day of July, 1911, the clerk of this court issued a writ of certiorari to the clerk of the Independence Chancery Court bringing up the record of the decree rendered by the chancery court on June 10, 1911, making disposition of the property above-named and entering a judgment for a sum of money against the appellant as above stated. From the decree of the court granting the appellee an absolute divorce the appellant duly prosecutes this appeal.

The facts are substantially as follows: It appears that when appellant married appellee the latter had a daughter about fifteen years of age, and that the daughter and appellant could not get along. The conduct of the daughter was so distasteful to appellant that he informed his wife that he and her daughter could not live in the same house. This was some seven or eight months after appellant and appellee were married. They then entered into the agreement set up by appellant in his answer, which is as follows: (Omitting formal part). "Julia Leonard, party of the second part, hereby agrees, upon the payment to her by the said N. B. Leonard, party of the first part, the sum of twenty-five ($ 25) dollars, the receipt whereof is hereby acknowledged; also that the said N. B. Leonard, party of the first part, shall on this day turn over to her, the said Julia Leonard, sixteen chickens and one cook stove; that she, the said Julia Leonard, will relinquish and abandon all her rights in and to all of the property, both personal and real, now owned by the said N. B. Leonard, or which might be owned in the future by the said N. B. Leonard, or any notes or accounts or choses in action now owned or to be owned by the said N. B. Leonard."

(Dated and signed by both parties.)

Appellee testified concerning this that appellant "said my daughter and he couldn't live in the same house, and the agreement was, I was to rent another house and take my daughter away until she married, and then I could come back home. I didn't think anything else, only I was to go back to his house as soon as my daughter was married. We agreed that I would rent this house, and after her marriage come back to him. I went away in a good humor with the intention of going back. After I left he got a woman there, but I didn't think anything about it, as his daughter was with him. After she left, he got two other women, and kept them nearly all winter and summer. The girl was right young, fifteen years old, I heard, and the other woman was her mother."

It was shown on behalf of the appellee that the first woman appellant had in his house after the agreement to live apart was of bad character. There was also testimony to the effect that the general reputation of the other two women for chastity was bad. There was testimony to the effect that the younger woman, Pearl Gilbert, was seen sitting on appellant's lap at 11 o'clock at night; this, however, was after the institution of the suit. The testimony of Pearl Gilbert, on cross examination, showed that she slept in the same room that appellant slept in; that she slept in this room while her mother slept in the other room; that when she was not sleeping in appellant's room she would sleep in the other room with her mother, but that when her mother was not there she would sleep in the same room where appellant slept, and that no one slept in the other room. It was shown that the elder woman, Wretha Gilbert, before she went to live with appellant, had a bastard child. It was also shown in evidence that, before the younger woman went to live at appellant's, a certain party had been indicted for having sexual intercourse with her.

One witness testified that early one Sunday morning she went to appellant's to get some lard; that when she went in. appellant's son-in-law was sitting on the cot with him, looking like he was paying his bill, and Pearl Gilbert was in appellant's bed asleep; that at that time Pearl's mother was in the back room in bed; it was early in the morning. There was testimony tending to show that appellant had been seen to hug and kiss Pearl Gilbert; that Wretha Gilbert early one morning was seen in appellant's room sitting on the bed with nothing on except a little knit shirt and an underskirt; that she looked as though she had been in the bed.

The evidence tended to show that appellant kept Pearl Gilbert living in his house with him after he had heard a number of witnesses testify that her reputation for chastity was bad. Appellee, among other things, testified that appellant wanted her to get a man friend and make $ 5.

The above are substantially the facts as they were developed on behalf of appellee.

The testimony on behalf of appellant was to the effect that he had never had any sexual intercourse with any one after his wife went away from him except appellee herself. He denied specifically, in his testimony, having had any sexual intercourse with any of the women mentioned in the testimony on behalf of appellee. He said that his wife's daughter was the cause of her leaving him; that he was not willing for her to leave, and repeatedly requested her not to do so. When she went to leave, she said: "If I would give her $ 50 and a cooking stove I had and sixteen chickens, she would sign a deed to me for her interest in my property." Continuing, appellant testified: "I told her that I would give her $ 25 if she would give me a bill of sale to her right in my property, and that I would also give her the chickens and the stove. She accepted this proposal, and we executed the agreement," (which agreement has already been set out.)

Another witness testified that he was present on the day the contract between appellant and appellee was executed; that the contract was talked about, and it was entered into as though it was satisfactory. The witness said that appellant paid appellee $ 25 there in his office. Another witness said that appellee signed the contract of her own free will.

There was testimony that appellant was of good character, and his general reputation was good, and that he kept a store, and the best people of the town traded with him, etc. He denied, in his testimony, all of the charges of improper conduct that had been alleged against him by appellee, and stated that he was compelled to have these women in his house after appellee left him in order to do his household work, such as cooking, washing, keeping house, etc. It was shown that the women were recommended to him by his son-in-law, who informed appellant that he had made inquiry about the women, and that it was reported to him that they were among the nicest people in their neighborhood.

Pearl Gilbert testified on behalf of appellant that she worked in the store and did his housework; that she went there with her mother; that her uncle had asked appellant to give her a home. He had never mistreated her in any way; had never had sexual intercourse with her; that she had never seen any misconduct between appellant and her mother, nor between him and any other woman. She denied that appellant had ever hugged and kissed her, and she and other witnesses testified that it was impossible for appellant to have been seen hugging and kissing her from the position where some of the witnesses on behalf of appellee testified that they saw him doing so.

Judgment affirmed.

John J Barnwell and McCaleb & Reeder, for appel...