Lewis v. Lewis
| Decision Date | 27 May 1857 |
| Parties | Lewis v. Lewis |
| Court | Indiana Supreme Court |
From the Henry Circuit Court.
The decree is affirmed, with costs.
William Grose, for appellant.
Jehu T Elliott and Joshua H. Mellett, for appellee.
This was an action for divorce, instituted by John Lewis against his wife, Sarah Lewis. The causes for divorce alleged in the petition are these: 1. Adultery with one Solomon Hiatt. 2. Abandonment. The defendant, in her answer, which is verified by oath, specifically denies the adultery; and, by way of cross-petition, she alleges that the plaintiff abandoned her without cause, &c., wherefore she prays a divorce and alimony. There was an answer to the cross-petition, and a reply to the answer.
The issues being made, the case was submitted to a jury, who upon the defendant's motion, were instructed to find specially upon the following questions, viz., In answer to these inquiries, the jury returned their verdict as follows: "We, the jury, find the defendant guilty of adultery as charged; that the plaintiff cohabited with her after he had knowledge of the adultery, and that he abandoned her."
Upon a return of the verdict, the plaintiff moved for a decree; but pending this motion, the defendant moved to dismiss the entire cause, on the ground that the verdict did not entitle the plaintiff to a divorce. The Court, however, overruled the latter motion, and rendered a decree in the plaintiff's favor, dissolving the marriage contract then subsisting between him and the defendant.
We have seen that the jury, though they found the defendant guilty of adultery, also found that the plaintiff cohabited with her after he was advised of the fact; hence, it is insisted that the decree is erroneous. The statute whereby this proceeding is regulated, points out adultery as a cause for which a divorce shall be decreed, upon the application of the injured party; but another provision of the same enactment declares, that a divorce shall not be granted for such cause, when the party seeking it has voluntarily cohabited with the other, with a knowledge of the adultery. 2 R. S. pp. 234, 235, secs, 7, 8. But the appellee contends that subsequent cohabitation, with previous notice of the adultery, is a ground of defense, and the defendant having failed to set up such defense in her pleadings, the verdict on that point is not within the issues, and therefore did not disclose a fact noticeable by the Court in rendering its decree.
The rule of procedure in cases for divorce, obviously contemplates a trial of the cause by the Court; and though the Court may of its own motion, by consent of parties, or upon the motion of either party, submit the questions raised by the pleadings to the consideration of a jury; still, the verdict may not be in all respects conclusive. And on final hearing of the cause, the Court may look into the whole case, and disregard so much of the finding of the jury as is plainly without the issues; because the finding of a fact not in issue can not constitute the basis of a judgment. 2 R. S. p. 121, sec. 372. Here, the subsequent cohabitation was plainly matter of defense; but it was not set up in the defendant's answer, and therefore, not the proper subject of proof on the trial. Id. p. 45, sec. 91. "A finding based upon such proof could have no legal effect in the decision of the cause, and might be rejected as surplusage." We are inclined, in this instance, to hold the action of the Court, though not in accordance with the verdict, unobjectionable.
During the trial, it appeared in evidence that John Lewis, the plaintiff, was not, at the...
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