Powers v. Powers

• Citation: 20 Neb. 529,31 N.W. 1
• Parties: POWERS v. POWERS.
• Decision Date: 06 January 1887
• Court: Supreme Court of Nebraska

20 Neb. 529

31 N.W. 1

POWERS

v.POWERS.

Supreme Court of Nebraska.

January 6, 1887.

Syllabus by the Court.

A petition, when assailed after decree, will be held sufficient, if the facts stated constitute a cause of action, even though informally and indefinitely stated. Such defects must be corrected, by motion, before answer or demurrer, or they will be deemed to be waived.

In a case brought to the supreme court on appeal, where no question of law is involved, and the testimony is conflicting and pretty evenly balanced, the finding of the court will not be disturbed. Callahan v. Callahan, 7 Neb. 38.

Evidence examined, and held to support the finding of the district court.

Appeal from Saline county.G. W. Bemis and Dawes, Foss & Stephens, for plaintiff.

Dilworth & Smith and Harwood, Ames & Kelly, for defendant.

REESE, J.

This is an appeal from Saline county. The action was brought to obtain a divorce, alimony, and the custody of a minor child. A decree for divorce, the custody of the child, $2,500 alimony, and $150 per year for the support of the minor child was rendered. Defendant appeals from the decree granting the divorce and custody of the child to plaintiff, and plaintiff complains that the allowance of alimony is too small. Two grounds for divorce are alleged in the petition,--habitual drunkenness and extreme cruelty. The finding of the district court was in favor of plaintiff upon the charge of extreme cruelty, but not as to habitual drunkenness.

Some objection is made to the petition as not being sufficiently explicit in the allegations of extreme cruelty. These allegations are as follows:

“(4) That the defendant, wholly regardless of his duties as a husband, has for the last five years treated the plaintiff with extreme cruelty without any provocation; that for more than five years preceding the twenty-second of March, 1884, he was and has been guilty of extreme cruelty to her; that on many occasions he frequently struck her; that he would use abusive, vulgar, and opprobrious epithets of and to her; that he accused her of being unchaste and untrue to him, threatened her life, and put her in fear of doing her bodily harm; that, when lady friends were visiting her, he was sullen, cross, and insolent; that his conduct in this respect became so notorious and unbearable that her friends ceased to visit her; that on the twenty-second day of March, 1884, he was guilty of extreme cruelty to her, in this: he cursed and swore at her; called her vulgar names, in this: ‘You damned old fool, you damned she-devil, you damned bitch, you are too damned nice to live,’ and other like language; that he was so vulgar, vicious, and insulting that she became frightened, and was afraid he would do her bodily harm; that anxiety of mind and mental anguish caused by the cruel treatment induced a nervous attack which prostrated her, and that she has ever since been under the care of a physician; that many times in the last five years, on occasions of his unkindness and ill treatment, she had been driven from home, and been compelled to seek protection with friends, but she has been induced to return and live with him by his repeated and solemn promise that he would treat her kindly in the future; that in consequence of his violating his promises, and continuing to treat her with unkindness and cruelty and ill treatment, her health has been greatly impaired; that on the twenty-second of March, 1884, he ill treated her, as aforesaid; that she was obliged to leave home, and seek a home with her parents for herself and child; that at that time she was and has been suffering with sickness caused by his ill treatment, which caused her to be very sick; that she has been under, and is now under, the care of a physician; that he is a man of coarse and vulgar habits, of high temper and revengeful disposition; that he has frequently, in the last five years and more, especially in the last two years, cursed and sworn at her; that at such times he would vent his spite upon the little boy, by kicking, striking, and severely whipping him; he would teach the little boy to swear at her, and sit by and laugh at her while the boy would do it, and, if she would try to stop the boy, he would curse and swear at her, and abuse her in other ways, so she was in constant fear of her life, and would threaten to whip the boy harder if she said anything; that on the twenty-second of March, 1884, she took said boy to her father's, a suitable place, where he can be taught proper manners, and have a good moral education; that he would come and intrude upon her at her father's house, and demand that she return and live with him, and bring the boy with her, and threatened her life if she did not, and that he would commit some terrible crime,--shoot her parents or steal the child, and remove him out of the jurisdiction of the court; that on the third of November, 1884, he did come, and steal and forcibly carry the boy off, and sent the following telegram:

“ ‘FRIEND, NEB., November 3, 1884.

“ ‘ Mrs. T. Powers, Crete, Nebraska: You might as well give up. I have my boy,’ ” etc.

While the petition was probably assailable by a motion for a more specific statement, yet we think it sufficient when attacked after decree. It is alleged “that on many occasions he * * * struck her; he would use abusive, vulgar, and opprobrious epithets of and to her; that he accused her of being unchaste and untrue to him, threatened her life, and put her in fear of doing her bodily harm,” etc.

A petition may state a cause of action, and yet be very informal. In Maxwell's Pleading and Practice, (Ed. 1885,) 113, it is said: “Mere defects of form--indefiniteness in the allegations of the petition--are not grounds of demurrer. These defects, and others if they exist, must be corrected by motion,” etc.

The principal contention of defendant is that the decree is not supported by sufficient evidence; that, considering all the proofs, the finding should have been in his favor. We have carefully read all the evidence in the case; and, while we must concede that, if this hearing was in an original and not appellate capacity, we might incline strongly to a different conclusion from that reached by the trial court, yet we cannot hold that that decision was wrong. And it is quite possible that, had we had the opportunity of the judge who tried the case, of an observation of the deportment of the witnesses, and of the other aids which are supposed to shed light upon a cause on trial directly before the court, we might have arrived at the same conclusion reached by him. In the capacity in which this court now sits, we must apply the fundamental and well-established rules applicable to such a capacity, that the decision is presumed to be correct, and that wherein the testimony is conflicting the decision thereon will be sustained unless clearly wrong. Callahan v. Callahan, 7 Neb. 41.

The testimony is quite voluminous, and is very contradictory. In fact, we do not remember of having perused a record in which appears a more sharp and unreasonable conflict of the statements of the witnesses. This occurs, not only in the testimony of the interested parties, but in that of those who are supposed to be wholly disinterested and destitute of bias. It is a lamentable fact that the disposition to help the side calling the witness is...