Martinez v. Lucero

• Decision Date: 31 January 1857
• Citation: 1 N.M. 208
• Parties: MARIANA MANUELA MARTINEZv.TOMAS LUCERO.
• Court: New Mexico Supreme Court

1 N.M. 208

MARIANA MANUELA MARTINEZ

v.TOMAS LUCERO.

Supreme Court of the Territory of New Mexico.

Jan. 1857.

Where the separation of the wife from her husband is voluntary and is caused by no cruelty or ill treatment, or if husband is bona fide, ready, willing and able to maintain her and she without good cause chooses to separate from him or if she has already a competent maintenance, equity will afford no aid in accomplishing a purpose which is deemed subversive of the true policy of the matrimonial law and destructive of the best interests of society.

*1 APPEAL from the district court of the second judicial district for the county of Taos. The opinion states the case.

M. Ashurst, for the appellant.H. N. Smith, for the appellee. By Court, BROCCHUS, J.:

This was a bill in chancery in the district court of the second judicial district, for the county of Taos, by Mariana Manuela Martinez against her husband, Tomas Lucero. The complainant alleges that on or about the thirtieth day of September, 1828, she intermarried with Tomas Lucero, and that at the time of said marriage and afterwards, a large amount of money, property, chattels, and real estate, the absolute property and inheritance of the said complainant, was delivered to the said Tomas Lucero as her husband, in trust for her use and benefit, and for the use and benefit of both, while they should live together as man and wife. The bill further alleges that they lived together as man and wife for the space of eight years, and that then, from various causes, a separation between them took place; that a few years afterwards, in the year 1847, they were reunited and lived together in the matrimonial relation for the space of eleven months; that at the expiration of that eleven months, they again separated, without issue, and have never since lived together. The complainant further alleges that her said husband has for years past been living in open adultery with another woman, by whom he has two children, and that he has been wasting and dissipating the property and effects of said complainant for the benefit of his said paramour and her two children, and she has good reason to believe that he will continue to waste, dissipate, and so convert the same until the whole amount thereof shall have been consumed. The petitioner therefore prays that the said Tomas Lucero be enjoined from further waste and dissipation of her estate; that he be compelled to answer the allegations of her bill; that he be compelled to account with her for the full amount of her property and estate, as well as the rents and profits thereof, since their last separation, and that such further relief may be granted as the nature of the case may require.

The respondent, Tomas Lucero, in his answer, admits that he intermarried with the complainant as alleged in her bill, and that they lived together for some seven or eight years. He avers that about seven or eight years after their marriage, he discovered that his said wife had proved faithless to him by the commission of adultery with one Mariano Martinez, and that she then, of her own accord, left her house and lived with the said Mariano Martinez in different houses; that in the year 1839, he went to California to escape the infamy and injuries his wife was heaping upon him; that at the time of his departure, she was living with the said Mariano Martinez; that upon his return to New Mexico, in 1842, he found her living in adultery with Mariano Lucero, a priest of the holy Catholic church, and first cousin to him, the respondent; and that she continued to live in adultery with said Mariano Lucero until the year 1846, when, through the solicitations of the respondent and the intercession of one Jose Antonio Martinez, she returned to her house and promised to live a reformed life and continue to live with the respondent. About nine or ten months after, she presented herself before Jose Maria Valdez, an alcalde of the county of Taos, and before him they separated by mutual consent, and the complainant at the time of separation released the respondent from any claim whatever that she might have had against him. And he further avers that immediately after their last separation his said wife returned to the house of the said priest, Mariano Lucero, and continued to live in open adultery with him up to the period of the filing of his answer to the complainant's bill. He also avers that in order to comply with his conjugal duties and his religious obligations, he made many sacrifices to induce her to return to him, and discontinued his effort only when all hope of reformation had gone.

*2 The respondent admits that he had at the time of his answer a woman living in his house to aid and assist him in his household duties, and that the said woman has two children, but avers that he does not know whether he is the father of said children or not. He denies the allegation that he is wasting and dissipating the property of the complainant upon the said woman, and avers that he never took the said woman or any other into his house until he had made several efforts to induce his said wife to live with him; and that as late as the year 1854 he requested said complainant to return to her home and perform the duties of a wife towards him, and that she refused so to do. The respondent further avers that he has paid to his said wife the full amount of property which he received as her separate estate.

Upon the final hearing of this cause upon bill, answer, and proofs, it was ordered and decreed that complainant take nothing by her bill, but that the same be dismissed with costs against her, to which decree the counsel for complainant excepted and appealed therefrom. In the progress of this cause in the court below an order was made appointing George Long a special commissioner to take depositions in the cause upon the giving of twenty days' notice to the respective parties or their attorneys, and afterwards while the said order continued in force. Depositions were taken on behalf of the respondent before the chancellor in vacation at the court-house in Fernandez de Taos. Eighteen days' notice was given to the solicitor of the adverse party at his residence in Fernandez de Taos, setting forth the time and place at which such depositions were to be taken. Upon the final hearing of the cause the solicitor for the complainant moved to quash the depositions, because they were not taken in conformity to the order of the court appointing George Long a commissioner for that purpose. The motion was overruled. The counsel for the complainant excepted to the said ruling.

The errors assigned in this cause are, that the district court erred in overruling the motion to quash the respondent's depositions; that the court erred in decreeing against the complainant and for the respondent, and that the court erred in adjudging costs against the complainant. From an inspection of the record it appears that the depositions to which the counsel for complainant objected, and the motion to suppress which was overruled, were taken in due form, and that the most ample notice was served upon the complainant, through her counsel, by the sheriff, eighteen days before the period thereof, in which notice the time and place at which the depositions were to be taken were distinctly set forth.

This court can not perceive the reasonableness or force of an objection to the taking of testimony between the parties to a cause in chancery before the chancellor at any time, providing that due notice be given to the adverse party of the time and place of taking the same, although an order may have previously been made, and still be in force, appointing a commissioner before whom the parties might take their testimony. It is to be presumed that the order was made for the convenience of the chancellor or the accommodation of the parties to the cause, and not with a view of giving exclusive authority to the commissioner to take depositions between the parties. It is not to be supposed that it was designed as an abrogation or annulment of the authority of the chancellor to take depositions to be used in the hearing of the cause. The order was standing at the time at which the depositions were taken, and either party had a...