Poe v. Poe

• Citation: 124 S.W. 1029
• Parties: POE v. POE.
• Decision Date: 03 January 1910
• Court: Arkansas Supreme Court

124 S.W. 1029

POE v. POE.

Supreme Court of Arkansas.

January 3, 1910.

Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor.

Action for separate maintenance by Mrs. J. S. Poe against O. S. Poe, and action by O. S. Poe against Mrs. J. S. Poe for divorce. The actions were consolidated, and from an order vacating a judgment for temporary alimony and from a decree granting O. S. Poe a divorce, Mrs. J. S. Poe appeals. Affirmed as to order vacating allowance of alimony and decree of divorce reversed, and complaint for divorce dismissed.

John H. Vaughn, for appellant. Ben Cravens, for appellee.

WOOD, J.

The action out of which the decree of divorce was rendered in behalf of appellee, O. S. Poe, and from which decree appellant appeals, was commenced by the appellant herein filing in the chancery court of Sebastian county for the Ft. Smith district on August 22, 1907, a bill in equity against O. S. Poe, alleging nonsupport and abandonment, and asking judgment requiring appellee herein to maintain her, and for such alimony and attorney's fee as the court deemed equitable. Thereafter, on the same day, appellee herein filed a suit in said court against the appellant for absolute divorce, and as grounds for such divorce set up desertion, habitual drunkenness, cruel treatment, and adultery on the part of the appellant, to which cause of action appellant filed answer on October 9, 1907, denying all of the allegations alleged in the complaint. Thereafter, on October 16, 1907, appellee herein filed answer to the complaint of appellant for alimony, and asked that said answer be taken as a cross-complaint, and that he be given an absolute divorce from the appellant on the grounds of desertion, habitual drunkenness, cruel treatment, and adultery, all of which he alleged in his said answer and cross-complaint. Thereafter, on October 25, 1907, the court on motion consolidated the two cases above set out, and the issues as thus made were finally submitted to the court on June 8, 1908, and after a full hearing an absolute divorce was granted to O. S. Poe from Mrs. J. S. Poe upon such grounds as were alleged in his cross-complaint.

The appellant, Mrs. J. S. Poe, asks this court to reverse the judgment of the chancery court, and relies upon three grounds:

First. Because the court made an order on the 25th day of October, 1907, vacating an order made at a former term of the court (August 22, 1907) allowing appellant temporary alimony in the sum of $25 per month, also $25 attorney's fee, and $10 for costs, and also in not allowing appellant to have further time to take depositions before setting aside the order for temporary alimony, attorney's fees, and costs.

Second. Because the court permitted the witness A. B. Poe to testify over the objection of appellant, as follows: "I am a brother of O. S. Poe. I live in Little Rock. After O. S. Poe and Mrs. O. S. Poe commenced these lawsuits, I went to New Orleans to see if I could find evidence in relation to the case. I know Mrs. Poe's reputation in New Orleans, La. It is bad. I hired a detective in Little Rock to go to New Orleans to look up evidence for me. The detective was a friend of mine, and I only paid his expenses. I went to different places in New Orleans, and they told me that Mrs. Poe had a bad reputation. I went to one restaurant, and asked the head waiter if he knew where I could get some women who would go out and have a good time. He told me that Mrs. Poe would go any time. I learned in different places where I went in New Orleans that Mrs. Poe had a very bad reputation, and was said to be a very fast woman."

Third. Because the evidence does not show that the appellee was a resident of the state of Arkansas one year next before the commencement of the action. We will consider the grounds upon which reversal is urged in the order named above.

1. The order allowing alimony, attorney's fees, and costs was a temporary order, and the court did not abuse its discretion in setting it aside after the appellee had filed his depositions to be read on the final hearing of the cause. Nor was there error in refusing to grant appellant further time to take testimony on the motion to vacate the order of a previous term allowing the alimony, attorney's fees, and costs. The appellant had from August 22, 1907, when the order was first made, until October 25, 1907, when it was set aside, to take her depositions on this as well as the divorce issue. Besides, the original order of allowance, as well as the order setting it aside, were both temporary orders subject to final review by the court on the...