Shors v. Shors
| Decision Date | 15 December 1906 |
| Citation | 110 N.W. 16,133 Iowa 22 |
| Parties | MARY SHORS v. JOSEPH SHORS, Appellant |
| Court | Iowa Supreme Court |
Appeal from Palo Alto District Court.-- HON.W. B. QUARTON, Judge.
SUIT for separate maintenance and the custody of minor children. There was a cross-petition asking for a divorce from the plaintiff. Trial and judgment for the plaintiff. The defendant appeals.-- Affirmed in part and reversed in part.
Affirmed in part and reversed in part.
Lynch & Berry and Thos. O'Connor, for appellant.
Heald & Ralston and Davidson & Burt, for appellee.
These parties were married in April, 1899, and lived together until shortly before this suit was brought, in April, 1905. They have two children, a boy now nearly seven years of age, and a girl about four years old. The plaintiff asks separate maintenance on the ground of cruel and inhuman treatment that endangers her life; the inhuman treatment alleged consisting of personal violence, threats, vile and opprobrious epithets and oft-repeated charges of unchastity. The defendant asks an absolute divorce on the grounds of inhuman treatment and adultery.
It is the rule that a suit for separate maintenance cannot be maintained, except for a cause which would warrant a decree of divorce. Graves v. Graves, 36 Iowa 310. Inhuman treatment which would warrant a divorce must be such as to endanger life, and it must be treatment which has not been provoked or caused by the fault of the complaining party. Aitchison v. Aitchison, 99 Iowa 93, 68 N.W. 573; Carlisle v. Carlisle, 99 Iowa 247, 68 N.W. 681; May v. May, 108 Iowa 1, 78 N.W. 703. It is also true that the testimony of the complaining party must be corroborated by other evidence. Code, section 3173.
It is the appellant's contention that the plaintiff's own testimony wholly fails to show a cause for separate maintenance, and that, if such were not the case, there is no evidence corroborating her. We shall not detail the evidence supporting the allegations of either party. Much of it is of a character unfit for publication, and no benefit can be derived from a recital of it in this opinion. It is sufficient to state our conclusion, based on a careful reading and consideration of the entire record. We doubt whether the plaintiff's case could be sustained on the grounds of personal violence and threats alone, but she testified that the defendant repeatedly charged her with being lewd, unchaste, and guilty of adultery; that he denied that he was the father of her daughter, and abused the child because thereof. We have no doubt that these accusations were made by the defendant, and that they were continued until this suit was brought. It is true that he in a way denies making them; but there is testimony corroborating to some extent the plaintiff, and this, with his specific and wholesale charges of adultery in his cross-petition, furnish the full corroboration required by the statute. There is sufficient evidence that this treatment on the part of the defendant did and would endanger the plaintiff's life. There may be inhuman treatment that endangers the life, although no physical injury be inflicted. Treatment which affects the mind to such a degree as to destroy health and endanger life is a cause for divorce under the statute. Sackrider v. Sackrider, 60 Iowa 397, 14 N.W. 736; Berry v. Berry, 115 Iowa 543, 88 N.W 1075. Unfounded accusations of unchastity may wound the feelings and destroy the wife's peace of mind to such an extent as to endanger her life as surely and as certainly as extreme physical violence. There is no substantial evidence of unchastity or adultery on the part of the plaintiff. The defendant finally limited the charge to a transaction which is alleged to have occurred at a dance at one Poduska's, but he failed to sustain that, and, if the testimony of the plaintiff, the son, and Nedved be true, she was guilty of no wrong. That Nedved followed her to the room where the boy was is undisputed, but the evidence touching that transaction shows clearly that the plaintiff was guilty of no indiscretion. Furthermore, the defendant's statement of the situation of his wife and Nedved when he looked into the room is wholly inconsistent with his action. Had he made the discovery he testifies to, he would not have left the pair with no other comment or action than a statement to his wife that he was ready to go home and was waiting for her. In our judgment the defendant has utterly failed to substantiate the charges made against the plaintiff in his cross-petition, or to show any justification for the repeated accusations made to her.
It is suggested in argument that there was condonation on the part of plaintiff, but there is nothing in the claim. The unjust accusations were made up to the very moment of final separation, and, even if there had been a mutual understanding that previous charges were to be forgiven, it was based on condition of future good conduct, and a repetition of the act revives the condoned offense. Craig v. Craig (two cases), 129 Iowa 192, 105 N.W. 446; Ellithorpe v. Ellithorpe (Iowa), 100 N.W. 328. Both Iowa cases.
The trial court adjudged the plaintiff to be entitled to separate maintenance, and ordered that the amount awarded be paid quarterly. An attorney's fee of $ 250 was also allowed. The judgment was appealed from, and after the appeal had been perfected the plaintiff made application to the district court for an additional allowance for suit money and for the payment of temporary alimony pending the appeal, which allowances were made, and the defendant appeals from the order. His contention is that the district court was without jurisdiction to make the order after an appeal to this court had been perfected and a supersedes bond filed. It is the general rule in this State that, when an appeal in equity is taken, all power of the court below over the parties and the subject-matter of the controversy is lost until the case, or some part thereof is remanded back for its further action. Levi v. Karrick, 15 Iowa 444; Stillman v. Rosenberg, 111 Iowa 369, 82 N.W. 768; Dunton v. McCook, 120 Iowa 444, 94 N.W. 942. And the rule should obtain in this case unless an exception be made because of section 3177 of the Code, which is as follows: "The court may order either party to pay the clerk a sum of money for the separate support and maintenance of the adverse party and the children, and to enable such party to prosecute or defend the action."
The question thus presented has not heretofore been determined by this court so far as we are advised, but it has undoubtedly been the general practice to treat the case after an appeal and pending such appeal as solely within the jurisdiction of this court. It is manifest that, as to all questions which were in fact determined by the trial court an appeal deprives it of further jurisdiction until there has been a remand of the case by this court, except in cases where the statute otherwise provides. Section 3177 providing for an allowance for support during litigation and to enable the party to prosecute or defend the action, the appellee contends that it gives the trial court power to order the payment...
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