Monen v. Monen

• Citation: 269 N.W. 85,64 S.D. 581
• Decision Date: 05 October 1936
• Docket Number: 7915
• Parties: CAROLINE MONEN, Respondent, v. O.T. MONEN, et al., Appellants.
• Court: Supreme Court of South Dakota

64 S.D. 581

269 N.W. 85

CAROLINE MONEN, Respondent,

v.

O.T. MONEN, et al., Appellants. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Lucius J. Wall, Judge #7915—Reversed Diamond & Jory, Sheldon, IA Bailey & Voorhees, Sioux Falls, SD Attorneys for Appellants. John C. Mundt, T.R. Johnson, Sioux Falls, SD Attorneys for Respondent. Opinion Filed Oct 5, 1936

CAMPBELL, Judge.

Defendant O.T. Monen is a farmer, 74 years of age, residing near Inwood, Iowa, and defendant Gurine Monen is his wife, aged about 76. In 1928 plaintiff, then aged 17, married a son of the defendants, then aged 23. Of this marriage there were two children, both boys, one born in February, 1929, and one in February, 1931. In 1934 plaintiff and her husband separated after a series of marital difficulties that had persisted more or less continuously since very shortly after their marriage. In April, 1935, plaintiff instituted the present action against the defendants, charging them with having alienated the affections of her husband, whereby her marriage was destroyed to her damage in the sum of $35,000. Defendants moved for directed verdict at the close of all the testimony, which motion was denied, and the jury found for plaintiff, awarding her $12,430.96. Defendants thereupon moved for judgment n.o.v., which motion was denied, and then moved for new trial, which motion was also denied. From judgment entered pursuant to the verdict of the jury and from denial of their application for new trial defendants have now appealed to this court.

Before coming to the merits of the cause a preliminary matter requires attention. Respondent, pursuant to order to show cause, has moved in this court for the dismissal of the appeal upon the ground that the abstract of the record as contained in appellants’ brief does not contain all the material evidence and that the appellants have knowingly and willfully so prepared their brief that the same contains an unfair and incomplete statement of those portions of the settled record necessary to a proper consideration of the assignments of error contained in the brief and that the appellants have willfully disregarded the spirit of the rules of this court in the preparation of said brief. The testimony upon the trial was voluminous. Appellants assign, among other errors, the insufficiency of the evidence to support the verdict and affirmatively state that their brief contains a statement of all the material evidence upon the trial. Respondent, deeming the statement of the settled record as contained in appellants’ brief to be imperfect or unfair, has inserted in her brief some hundred and twenty-four pages of further and additional statement (Supreme Court Rule 6). Appellants in their reply brief maintain that the changes and additions set forth in respondent’s brief are merely repetitive and add nothing to the completeness or accuracy of the abstract of record appearing in appellants’ brief, and they have caused the clerk of the trial court to forward the settled record to this court (Supreme Court Rule 7).

In the first place, by Supreme Court Rule 3, willfully presenting an unfair or incomplete statement of the settled record in a brief or willfully disregarding the spirit of the court rules in the preparation of a brief is not made ground for dismissal of the appeal, but is ground for rejecting the brief in whole or in part, or refusing to tax costs for the preparation of the same, or both, in the discretion of the court. In the second place, an examination of the settled record convinces us that the abstract of appellants is neither unfair nor incomplete, and we fail to find that appellants have disregarded, either knowingly, willfully, or otherwise, the rules of this court or the spirit of such rules. We find no grounds whatever to support the motion to dismiss the appeal, and it will therefore be denied.

Turning now to the merits, appellants, upon proper record and by sufficient assignments of error, complain of the rulings of the trial court in rejecting certain evidence offered by appellants; in admitting over appellants’ objections certain testimony introduced by respondent; in giving certain instructions; and in refusing certain instructions requested by appellants. Appellants also complain that the court erred in failing, on motion of appellants, to require respondent to furnish security for costs and complain that the jury awarded excessive damages by reason of passion and prejudice. We are of the opinion that some of the rulings of the trial court relating to admission of evidence and some of the rulings relating to requested instructions exhibit prejudicial error. Appellants further assign error, however, that the evidence is entirely insufficient to support the verdict, and the view we take upon this claim of error is decisive of the case and renders it unnecessary to consider in detail or pass specifically upon the other assignments.

The law with reference to alienation of affections is quite well settled and exhibits but few phases concerning which the authorities are in any degree conflicting. The gist of the action is malicious interference with the marriage relationship.

When the suit is by one spouse against the parents of the other (or against persons standing to such other in loco parentis), we have a situation which is markedly different from that where the action is against a stranger or unrelated third person. The law recognizes, respects, and protects not only the marital relation, but likewise that of parent and child; and the relation of parent and child does not cease to exist, nor does the...