Smith v. Smith

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtGARY
Citation27 S.E. 545,50 S.C. 54
PartiesSMITH v. SMITH.
Decision Date13 July 1897

27 S.E. 545
50 S.C. 54

SMITH
v.
SMITH.

Supreme Court of South Carolina.

July 13, 1897.


Complaint fob Alimony—Surplusage—Joinder of Causes.

1. In a complaint for alimony on the ground of cruelty and desertion, allegations giving the history of the case, showing separations and forgiveness, specific instances of cruelty, and that plaintiff was driven from her home, and lived with a son unable to support her properly, should not be stricken as irrelevant, evidentiary, or mere surplusage.

[27 S.E. 546]

2. A complaint for alimony containing allegations of desertion and cruelty states only one cause of action.

Appeal from common pleas circuit court of Chesterfield county; R. C. Watts, Judge.

Action by Caroline Smith against George W. Smith for alimony. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint, with the caption omitted, was as follows: "The complaint of the above-named plaintiff, complaining to this honorable court of the above-named defendant, respectfully alleges: (1) First. That on the 27th day of December, A. D. 1895, in the county and state aforesaid, she was duly and legally married to the defendant, George W. Smith. (2) That at the time of such marriage, and at times hereinafter mentioned, both this plaintiff and the defendant were, and are now, domiciled in and actual inhabitants of Chesterfield county, state of South Carolina. (3) That since the said marriage, except at the times hereinafter mentioned, the defendant and this plaintiff lived together as husband and wife, but they have had no children born to them by such marriage. (4) That for some time after the said marriage this plaintiff lived happily and peacefully with the defendant, and he had her confidence and devotion. That subsequently, about two years after said marriage, plaintiff paid a brief visit to her grandchildren, the children of G. C. Cassidy, a son of plaintiff by a former marriage, and when she returned to her home the defendant abused and cursed her, and thereupon the defendant left and deserted her, remaining away for several months; that then, when defendant had expressed sorrow for his conduct, and had promised to conduct himself as a dutiful husband should, and had asked forgiveness for the wrongs which he had done her, plaintiff, acting on these promises, and believing that he was truly sorrowful for his conduct, Consented that he should return to her home, where he was always welcome so long as he conducted himself as a dutiful husband should. (5) That after he had returned to her home, and had remained there for some time, he asked plaintiff to make him a deed to the land upon which she lived, and which was then owned by her, but she refused to do so. That thereupon the defendant refused to do any further work on the premises, which were used for agricultural purposes, and threatened to pull down the fences which had been put upon said premises. That defendant then abused and cursed plaintiff, and left and deserted her, staying away from plaintiff's home several months. That after remaining away for some time the defendant expressed sorrow for his conduct, and asked forgiveness for same, and, after making most solemn promises of amendment and good treatment, she consented for him to return to her home, and he did so return and remain for a while. That at various other times defendant has wantonly outraged plaintiff's feelings as a woman by gross insulting language, which he has used to her and of others in her presence, and has threatened not only to strike plaintiff, but to kill her. That on one occasion since the said marriage the Rev. Mr. Rushton spent the night at plaintiff's home, and the defendant violently abused and cursed plaintiff because she provided breakfast for Mr. Rushton, and cursed and abused him in her presence after he left. That the defendant has repeatedly left and deserted plaintiff since their marriage, and made no provision for her support and sustenance, although he was abundantly able to do so; but each time, except at the time hereinafter mentioned, after making most solemn promises of amendment and good treatment, and expressing his regret for his conduct toward her, she consented that he should return to her home; but the promises, on faith of which she consented for him to return, were each time broken. That finally, some time about the month of March, 1891, after abusing and cursing plaintiff, the defendant left and deserted her, and has done nothing toward her support and sustenance since that time, although he is abundantly able to support himself and plaintiff in comfort, and she has been compelled to work for her own support, except what was given her by G. C. Cassidy, a son of plaintiff by a former marriage, who is a man of very limited means. (6) That plaintiff has always conducted herself as a dutiful wife should, and has always tried to make the defendant's home life happy, so long as he remained with her, and it is through no fault of hers that defendant could not live quietly and happily with her. (7) That plaintiff is now getting quite advanced in years, and she is without property, and almost wholly dependent upon her son, G. C. Cassidy, for a support. (8) That defendant is a man of means, doing a good business, and possessed of ample, sufficient property to support himself and plaintiff in the greatest comfort. (9) That on the 6th day of November, 1894, the premises owned and occupied by this plaintiff were sold at public sale, pursuant to an order of court, and at said sale the defendant, George W. Smith, became the purchaser of same. That plaintiff was residing on said premises, and continued to reside thereon until some time during the month of September, 1896. That on the 1st day of August, 1896, on hearing the affidavit of George W. Smith, the defendant herein, his honor, Judge R. C. Watts, issued a rule against this plaintiff to show cause why she should not be adjudged in contempt of court in not yielding possession of the premises then occupied by this plaintiff, the same having been purchased by the defendant, George W. Smith, under foreclosure proceedings. That on the 31st day of August, 1896, the plaintiff having made return to said rule, his honor, Judge R. C. Watts, on motion of W. F. Stevenson, Esq., attorney for George W. Smith, ordered that this plaintiff, Caroline Smith, 'do yield possession of said tract

[27 S.E. 547]

of land within fifteen days from the date of said order; and, unless she does so yield possession to said George W. Smith, that the sheriff of Chesterfield county do dispossess her, and put the said George W. Smith in possession of said tract of land.' (10) That in obedience to said order of court she was compelled to and did yield possession of said tract of land, which had been her home, and since that time, being without money or means, she has been compelled to rely upon her son, G. C. Cassidy, who is unable to support her properly, he being a poor man, with a family of his own. Wherefore plaintiff prays judgment: (1) That she be protected in living separate and apart from her husband, the defendant herein, and that he be restrained from in any wise disturbing or interfering with her. (2) That the defendant be required to pay to plaintiff as alimony an adequate and suitable amount of money for her support and maintenance, at such fixed and stated periods, and in such amounts of money, as may by the court be adjudged proper; and also that the defendant be adjudged to pay all the costs, expenses, and charges of the proceedings necessary to obtain the relief herein prayed. (3) For such other and further relief as to the court may seem fit and proper."

On the 21st day of December, 1896, the defendant, through his attorneys, served the plaintiff's attorneys with the following notices and grounds of motion (caption omitted): "Please take notice that the attorneys for the defendant herein will move before his honor, Judge R. C. Watts, judge of the Fourth circuit, at his chambers in Cheraw, S. C, on the 26th day of December, 1896: (1) To strike out paragraph No. 2 of the complaint, on the ground that it is surplusage, and irrelevant and redundant matter. (2) At the same time and place they will move to strike out paragraph No. 3 of the complaint, on the ground that it is irrelevant, redundant, and mere surplusage. (3) At the same time and place they will move to strike out of paragraph No. 4 all from the beginning down through the words 'and he had her confidence and devotion, ' on the ground that the said parts, being the first four lines of the paragraph as served on defendant, are irrelevant, redundant, and mere surplusage. (4) At the same time and place they will move to strike out all that part of paragraph 4 beginning with the words on line five of said paragraph as served on defendant, as follows: 'That subsequently, about two years after, ' etc., on down through 'remained away for several months, '—all the matters stated in that part of said paragraph being probative and evidentiary matter, and matter not material, nor affecting the remedy, nor stating, nor tending to state, any cause of action, and therefore being redundant, irrelevant, and mere surplusage. (5) At the same time and place they will move to strike out that part of paragraph No. 4 beginning with the words, That then, when defendant had expressed, ' etc., and running to the end of said paragraph, ending with the words, 'so long as he conducted himself as a dutiful husband should, ' said part of said complaint not stating, nor tending to state, any cause of action, and being irrelevant and redundant matter. (6) At the same time and place they will move to strike out all that part of paragraph 5 of said complaint beginning at...

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26 practice notes
  • Kirton v. Howard, (No. 12059.)
    • United States
    • United States State Supreme Court of South Carolina
    • August 26, 1926
    ...39 S. C. 436, 17 S. E. 996; Ross v. Jones, 47 S. C. 211, 25 S. E. 59; Dawkins v. Mathis, 47 S. C. 64, 24 S. E. 990; Smith v. Smith, 50 S. C. 54, 27 S. E. 545. Too, if objection is not taken by way of demurrer or answer, such objection cannot be urged upon motion for nonsuit. Delleney v. Gra......
  • Scheper v. Scheper, (No. 11251.)
    • United States
    • United States State Supreme Court of South Carolina
    • June 12, 1923
    ...1 McCord, Eq. 197, 16 Am. Dec. 597; Prince v. Prince, 1 Rich. Eq. 282; Hair v. Hair, 10 Rich. Eq. 172; Smith v. Smith, 50 S. C. 63, 27 S. E. 545; 51 S. C. 384, 29 S. E. 227; Sams v. Sams, 117 S. C. 312, 108 S. E. 921. That the execution of such a decree involves the divesting pro tanto of t......
  • Laramie National Bank v. Steinhoff
    • United States
    • United States State Supreme Court of Wyoming
    • June 1, 1898
    ...v. Snow (Utah.), 43 P. 620; State v. Willis (Minn.), 63 N.W. 169; State v. District Court (Minn.), 42 id., 598; State v. Nathans (S. C.), 27 S.E. 545; Leopold v. People (Ill.), 30 N.E. 348; Clark v. Burke (Ill.), 45 id., 235; Thompson v. R. R. Co. (N. J.), 21 A. 182.) A judgment in such a p......
  • Simonds v. Simonds, No. 17370
    • United States
    • United States State Supreme Court of South Carolina
    • December 18, 1957
    ...be borne in mind that an action for the recovery of an allowance for separate maintenance and support is an equitable one. Smith v. Smith, 50 S.C. 54, 27 S.E. 545; Hornsby v. Hornsby, 187 S.C. 463, 198 S.E. 29; Matheson v. McCormac, 186 S.C. 93, 195 S.E. 122. This Court has the authority in......
  • Request a trial to view additional results
26 cases
  • Kirton v. Howard, (No. 12059.)
    • United States
    • United States State Supreme Court of South Carolina
    • August 26, 1926
    ...39 S. C. 436, 17 S. E. 996; Ross v. Jones, 47 S. C. 211, 25 S. E. 59; Dawkins v. Mathis, 47 S. C. 64, 24 S. E. 990; Smith v. Smith, 50 S. C. 54, 27 S. E. 545. Too, if objection is not taken by way of demurrer or answer, such objection cannot be urged upon motion for nonsuit. Delleney v. Gra......
  • Scheper v. Scheper, (No. 11251.)
    • United States
    • United States State Supreme Court of South Carolina
    • June 12, 1923
    ...1 McCord, Eq. 197, 16 Am. Dec. 597; Prince v. Prince, 1 Rich. Eq. 282; Hair v. Hair, 10 Rich. Eq. 172; Smith v. Smith, 50 S. C. 63, 27 S. E. 545; 51 S. C. 384, 29 S. E. 227; Sams v. Sams, 117 S. C. 312, 108 S. E. 921. That the execution of such a decree involves the divesting pro tanto of t......
  • Laramie National Bank v. Steinhoff
    • United States
    • United States State Supreme Court of Wyoming
    • June 1, 1898
    ...v. Snow (Utah.), 43 P. 620; State v. Willis (Minn.), 63 N.W. 169; State v. District Court (Minn.), 42 id., 598; State v. Nathans (S. C.), 27 S.E. 545; Leopold v. People (Ill.), 30 N.E. 348; Clark v. Burke (Ill.), 45 id., 235; Thompson v. R. R. Co. (N. J.), 21 A. 182.) A judgment in such a p......
  • Simonds v. Simonds, No. 17370
    • United States
    • United States State Supreme Court of South Carolina
    • December 18, 1957
    ...be borne in mind that an action for the recovery of an allowance for separate maintenance and support is an equitable one. Smith v. Smith, 50 S.C. 54, 27 S.E. 545; Hornsby v. Hornsby, 187 S.C. 463, 198 S.E. 29; Matheson v. McCormac, 186 S.C. 93, 195 S.E. 122. This Court has the authority in......
  • Request a trial to view additional results

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