Mathy v. Mathy

• Citation: 113 S.W. 1012
• Parties: MATHY v. MATHY.
• Decision Date: 02 November 1908
• Court: Arkansas Supreme Court

113 S.W. 1012

MATHY v. MATHY.

Supreme Court of Arkansas.

November 2, 1908.

On Rehearing, November 30, 1908.

Appeal from Garland Chancery Court; Alphonzo Curl, Chancellor.

Action by Della J. Mathy against Joseph Mathy, in which defendant filed a cross-bill. From a judgment denying relief to either party, defendant appeals. Reversed and remanded, with directions.

C. V. Teague, for appellant. S. W. Leslie, M. S. Cobb, and Wood & Henderson, for appellee.

HART, J.

Della J. Mathy instituted an action for divorce against Joseph Mathy in the chancery court of Garland county on the 19th day of April, 1906, and the case is here on appeal.

The complaint alleges a marriage on May 3, 1885, in Chicago, Ill., a residence in Arkansas for the statutory period required for divorce, and for cause of divorce assigns cruel treatment and personal indignities. She prays for alimony, attorney's fees, and for general relief. On May 23, 1906, Joseph Mathy answered, admitting the marriage and residence in the state of Arkansas, but denies all the other material allegations of the complaint. On May 30, 1906, he filed his cross-complaint, alleging that appellee had been guilty of adultery with divers persons named in his cross-complaint. On June 9, 1906, appellee answered the cross-complaint. She denied adultery on her part, and charged appellant with adultery with various women named by her in her amended bill. Subsequently several amendments were made to the pleadings, which consisted in additional charges of adultery by each and a denial of the charges by the other. The chancellor found both parties equally at fault, and therefore rendered a decree dismissing both the complaint and the cross-complaint for want of equity. A large amount of testimony was taken on each side. On account of the vulgar details, we will refrain from making an abstract of the testimony. Besides, it would serve no useful purpose. A careful examination of the evidence leads us to conclude that, whatever may have been the sins of each against the marriage vows, about the beginning of the year 1905 they confessed their past offenses to each other, and each forgave the other. A reconciliation was had, and the marriage relation was resumed. This amounted to a condonation of past causes of divorce. Womack v. Womack, 73 Ark. 281, 83 S. W. 937, 1136. The evidence clearly establishes the subsequent adultery of appellee. On the other hand, we do not think that the testimony shows that appellant has been guilty of adultery since the date at which all past offenses of each party was condoned by the other, nor do we think it sustains the charge of cruel treatment against him during that time. Therefore the chancellor erred in dismissing the cross-complaint of appellant. On the day that the decree was rendered the chancellor permitted appellee to amend her complaint so as to conform to the proof, and to ask that appellant be decreed to hold certain property situated in Hot Springs, Ark., called the "Magnolia Hotel," in trust for her, and that the title to the same be invested in her.

The facts concerning this property as disclosed by the record are as follows: After appellee became enamoured of one Judge Irwin, and went to live with him, she claims that he and her mother, in partnership, bought the property in Hot Springs, Ark., called the "Magnolia Hotel." That the purchase price was $3,300, and that her mother and herself contributed $1,200 or $1,400 towards the payment of it. In any event, the undisputed facts show that the property was purchased for $3,300, and the title was taken in Judge Irwin's name. After the death of the mother of appellee, and after Judge Irwin had abandoned appellee, he conveyed the property to her by deed. The consideration was $1,100, for which she gave him her note, and also an agreement on her part to pay the balance of the purchase money, which was the difference between the $1,100 and $3,300, the original purchase price. After she returned to her husband in 1902, she conveyed the property to him for a nominal consideration. He paid the note which she had given to Judge Irwin and also the note for the balance of the purchase money, amounting in the aggregate to something over $3,300. Appellee told appellant the exact condition of affairs. Said that she was not able to pay off the incumbrance, and asked him to do so. Appellant agreed to do this if appellee would deed him the...