Lundy v. Lundy

• Decision Date: 04 January 1922
• Docket Number: Civil 1897
• Citation: 23 Ariz. 213,202 P. 809
• Parties: MARGARETTE H. LUNDY, Appellant, v. JOHN C. LUNDY, Appellee
• Court: Arizona Supreme Court

202 P. 809

23 Ariz. 213

MARGARETTE H. LUNDY, Appellant, v. JOHN C. LUNDY, Appellee

Civil No. 1897

Supreme Court of Arizona

January 4, 1922

APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge. Affirmed.

Messrs Jacobs & Partridge, for Appellant.

Messrs McCann & Watson and Mr. Chas. L. Rawlins, for Appellee.

OPINION

ROSS, C. J.

This is a suit for divorce brought by John C. Lundy against Margarette H. Lundy on the grounds of willful desertion for the statutory period of one year. The complaint was filed September 15, 1920. The defendant answered by general denial and counterclaimed, charging plaintiff with willful desertion. She asked to be divorced from plaintiff on that ground and that there be a division of the community property. At the close of the trial, defendant asked to be nonsuited on her cross-complaint, which was done. The court's decree was in favor of the plaintiff, and the defendant appeals therefrom to this court.

Because of the character of the assignments of error, we shall give such portions of the evidence as we deem necessary to present the points.

It is shown that the parties hereto were married at Globe, Gila county, on December 24, 1901; that in 1907 defendant commenced an action against plaintiff for divorce, alleging willful desertion and asking for a division of property; and that, pending suit, the property was divided by agreement whereupon suit was dismissed, as defendant says, "by agreement." In 1918 or 1919 the present plaintiff filed suit against defendant alleging willful desertion, which was later dismissed without trial.

Upon the trial it was shown that both parties had property, but for reasons unexplained they occupied as their home a house belonging to defendant. For some time prior to March 15, 1907, defendant, according to the plaintiff's story, had refused to prepare his meals, and had refused to wash and look after his clothes. There had also grown up some differences as to money matters in connection with improvements being placed on a 160-acre tract of land, plaintiff claiming defendant had agreed to furnish one-half the money necessary for such purpose. Plaintiff testified:

"I got the bill for the carload of posts and I took a copy of it to her. I says, 'Here is the bill for that lumber and posts.' She says, 'I ain't going to put another dollar in it.' I told her that I hadn't enough money to improve the place, and if she didn't help me I would charge her part of it to the expenses of the place. At that she rushed in with a clothes brush, grabbed my clothes and throwed them out on the floor to me, and says, 'You get out of here and don't come back.' Well, I was standing at the front room window. So when I was packing up -- I got some boxes and packed my clothes and put my tobacco and shaving outfit and some hair brushes and clothes brushes in my pocket, and was starting out; and she came out of a back room and held her hands behind her back and says, 'There is nothing in this house belongs to you and you get out and stay out,' and I said, 'I will go when I get ready.' As I started out she says, 'You are a beast.' As I was going through the hall, a carpenter, Mr. Lewis, said, 'What are you doing with your clothes on your arm?' Says I, 'The old woman fired me out.' I went on through and looked at my room. I put the things in my sleeping-room. . . . Before that I had throwed over into her yard some wood from the repairs on my building next door. . . . I put my clothes in my sleeping-room and went back over there and was throwing that wood back into my yard -- I was going to use it myself -- when she came out again and said: 'You brute! You are stealing my wood, are you?' I told her that the wood belonged to me and I was going to take it, and I piled the wood on my side and went back up to the house. Since that time we have not lived together as husband and wife. I have lived in that little room back of my house and she has lived in her place. She has never asked me to come back and live with her. Probably once a month or so we would meet on the street, and if she spoke to me I would speak to her, and that was all."

J. T. Lewis, referred to by plaintiff, testified that in the year 1907 he was working for plaintiff and saw plaintiff moving his "stuff" from defendant's house to his own house.

Mrs. Leonora Russell testified:

"In 1909 I heard a conversation which Mrs. Shaw had with Mrs. Lundy. She asked Mrs. Lundy if she was going back to live with Mr. Lundy. Mrs. Lundy replied, 'No, I threw him out once, and I will never live with him again.' That was in the presence of Dr. [Mrs.] Shaw and myself. Later I went to work at the Fair Store. Mrs. Lundy was one of the patrons there. About a year ago Mrs. Lundy was in the store, and I asked her, 'Have you and Mr. Lundy made up?' and she said, 'No, and we never will.'"

Defendant testifying did not deny that she used the abusive language charged against her by the plaintiff, but did deny that she had told plaintiff to leave her home and never come back, or that they had ever quarreled; stated she did not know why plaintiff had left her; that she wanted him to come home, and that in March or April, 1915, she had cooked his meals for him and waited on him while he was sick, for about a month, and that she had at that time asked him to come home. She introduced four letters written by him from California in April, 1915, telling her how he was getting on under treatment for nervousness, and in each letter he addressed her as "my dear wife." Defendant denied making the statements testified to by Leonora Russell.

The first assignment is that the court erred in refusing to strike out, upon defendant's motion, the testimony of Leonora Russell for the reason that it is not corroborative of the testimony of plaintiff.

Paragraph 3861 of the Civil Code of 1913 provides that --"In a suit for divorce from the bonds of matrimony the defendant shall not be compelled to answer upon oath, nor shall the complaint be taken as confessed for want of an answer, but the judgment of the court shall be rendered upon full and satisfactory evidence sustaining all material matters alleged in the complaint. Either party may be a witness, but no divorce shall be granted upon the testimony or admissions of a party unless the same be corroborated by other evidence."

Whatever may be said about the effect of this statute and its purpose, it is quite apparent that it does not make incompetent as evidence the admissions of a party to a divorce proceeding. The admissions of parties against their interest have always been regarded as evidence of the most important character. Baker v. Baker, 13 Cal. 87; Burke v. Burke, 44 Kan. 307, 21 Am. St. Rep. 283, 34 P. 466; 9 R.C.L. 435, § 239; 19 C.J. 144, § 368.

It is next claimed that the court erred in denying defendant's motion to nonsuit plaintiff at the close of his case, for the reasons: (1) That there is not sufficient corroboration of the testimony of the plaintiff; (2) that the evidence shows that plaintiff was the deserting party, if there was any desertion; (3) that the evidence shows that the parties separated by mutual consent; (4) that if there was a desertion at the time of the separation, such desertion had changed into a separation by mutual consent; and (5) that defendant had in good faith requested the plaintiff to return and live with her.

It will be observed that the evidence in the case consists of the testimony of the plaintiff as to what was said and done by the defendant, the admissions of the defendant testified to by Russell, the statement of Lewis to the effect that he saw plaintiff taking his belongings from defendant's home to his own, and defendant's testimony.

The defendant contends that paragraph 3861, quoted above, forbids the granting of a divorce upon such testimony, and argues that in addition to such testimony there must be "other evidence" supporting the charge of desertion. That paragraph in its general outlines is found in the Revised Statutes of 1887 of the Territory of Arizona as paragraph 2113. It is carried forward into the Revised Statutes of 1901 without any material change as paragraph 3115. The last sentence of the paragraph prior to its incorporation into the Civil Code of 1913 reads as follows:

"Either party may be a witness, but no divorce shall be granted on the testimony of a party unless the same be corroborated by other evidence."

In the 1913 revision the above-quoted sentence is unchanged, except after the word "testimony" there is inserted the words "or admissions." Originally the prohibition was against granting a divorce "on the testimony of a party unless the same be corroborated by other evidence," but as changed the prohibition is also against the granting a divorce on "the admissions of a party unless the same be corroborated by other evidence." "A party" relates to the antecedent "either party" and means one or the other and not both of the spouses. It is singular. Appellant contends that "other evidence" means evidence aside from that of the husband and wife. But it seems that the natural construction to be placed upon these words is that they mean other evidence than the testimony or admissions of the spouse testifying or admitting some material fact. The prohibition is against the granting of the divorce upon the unsupported and uncorroborated testimony or admissions of one of the parties, and it does not involve the rejection of the evidence of the other spouse as corroborative evidence. "Other evidence" means any competent evidence testified to by any witness qualified under the law to testify whether it be direct or circumstantial in its character, evidence from another source, but not...