Peyton v. Peyton

• Decision Date: 29 January 1915
• Docket Number: 17,937
• Citation: 151 N.W. 150,97 Neb. 663
• Parties: CORDELIA PEYTON, APPELLEE, v. LACEY E. PEYTON, APPELLANT
• Court: Nebraska Supreme Court

151 N.W. 150

97 Neb. 663

CORDELIA PEYTON, APPELLEE, v. LACEY E. PEYTON, APPELLANT

No. 17,937

Supreme Court of Nebraska

January 29, 1915

APPEAL from the district court for Douglas county: HOWARD KENNEDY JUDGE. Affirmed.

AFFIRMED.

Brome & Brome, for appellant.

John M Macfarland and Lambert, Shotwell & Shotwell, contra.

SEDGWICK J. MORRISSEY, C. J., and LETTON, J., not sitting.

OPINION

SEDGWICK, J.

The plaintiff began an action in the district court for Douglas county against the defendant, and afterwards filed an "amended petition" therein. The original pleadings are not contained in the transcript. In this supplementary petition she asked for a divorce from the defendant, and alimony, principally upon the ground of cruelty. The defendant filed an answer and cross-petition asking for a divorce from the plaintiff. Upon the trial the court found that neither party was entitled to any equitable relief, and that the plaintiff was without means of support, and dismissed the action, judging the costs against the defendant. The defendant has appealed.

In his cross-petition the defendant alleged that the plaintiff and defendant were married on the 25th day of July, 1905, and that they have no children; that the plaintiff was addicted to the excessive use of intoxicating liquors and was frequently intoxicated and in drunken condition; and "that, by reason of plaintiff's conduct in this behalf and her frequent unexplained absences from her home, controversy arose between plaintiff and defendant, and defendant remonstrated with plaintiff, and sought to persuade her to abandon and cease her conduct and habits in this respect, but without success; * * * that thereafter, and on about the 1st day of June, 1911, and at various times thereafter, plaintiff proposed to defendant that she would cease the use of intoxicating liquors and conduct herself properly in the future if defendant would resume marital relations with her, and thereupon defendant, relying upon the promises and protestations of plaintiff, was induced to and did resume marital relations with plaintiff, returned to his home at number 315 Park avenue in the city of Omaha, and plaintiff and defendant there resided together as husband and wife until the 15th day of January, 1912; that plaintiff did not cease the excessive use of intoxicating liquors, and was frequently absent from her home without any cause or reason therefor, and frequently returned in an intoxicated and drunken condition. " He then alleged that the plaintiff had been guilty of adultery with different men, specifying several instances of the commission of that crime by her. He asked for an absolute divorce. There seems to be no doubt that the allegations against the plaintiff are sufficiently proved to justify the findings of the trial court that she was not entitled to any relief in a court of equity.

The defendant insists that the charges which she has made against him are not sustained by the evidence. A large amount of evidence was taken. It is contained in something over 800 sheets of type-written matter. It is very conflicting and we cannot attempt to give anything like an analysis of it. It appears without substantial conflict that, while the plaintiff was living with a former husband, she and this defendant were frequently together. Their relations were very intimate, and at about the time that she obtained her divorce from her former husband the plaintiff and this defendant began secretly living together as husband and wife, and so continued for several years before their marriage.

Counsel for defendant insists that this conduct of the parties before their marriage ought not to be counted against the defendant in this...