Smithson v. Smithson

• Decision Date: 19 February 1917
• Docket Number: 18805
• Citation: 113 Miss. 146,74 So. 149
• Court: Mississippi Supreme Court
• Parties: SMITHSTON v. SMITHSTON

74 So. 149

113 Miss. 146

SMITHSTON v. SMITHSTON

No. 18805

Supreme Court of Mississippi

February 19, 1917

Division B

APPEAL from the chancery court of Hinds county, HON. O. B. TAYLOR Chancellor.

Bill for divorce by W. W. Smithston against Meta W. Smithston From a decree for complainant, but awarding defendant alimony, defendant appeals and complainant cross appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, bill dismissed and reversed and remanded.

L. Brame, for appellant.

G. G. Lyell and Mayes, Wells, May & Sanders, for appellee.

OPINION

COOK, P. J.

Appellee exhibited his bill of complaint in the chancery court of Hinds county against the appellant, his wife, seeking a divorce from the bonds of matrimony upon the alleged cause of "habitual and excessive use of opium, morphine, or other like drug." Appellant answered the bill of complaint, denying the allegations of the bill. The evidence introduced on behalf of the complainant supported the allegations of the bill that respondent, for eight years prior to the separation of complainant and respondent, which separation occurred August 3, 1914, was addicted to the habitual and excessive use of the drugs mentioned, and that in consequence it was impossible for the complainant and respondent to live together. On the other hand, the evidence produced by respondent in denial of the allegations of the bill went to show that she had never been an habitual and excessive user of the habit-forming drugs mentioned in complainant's bill. Viewing the case as one in which there is a conflict of evidence, the finding of facts by the chancellor will control this court in the application of the law. Upon final decree the court below granted the divorce, and also granted respondent alimony. Respondent appeals to this court from the decree dissolving the bonds of matrimony, and complainant from the decree granting alimony.

The chancellor, in his final decree--"finds as a fact that the cause of divorce alleged in the original bill existed in favor of complainant at the time of the separation of the parties August 3, 1914, but did not exist at the time suit was instituted December 22, 1914. But the court finds that complainant had reasonable time after the separation within which to file the bill, and it was filed within reasonable time."

It will be observed that the chancellor, in the decree, decided two facts, to wit: (1) The defendant was an habitual user of drugs on the date of the separation of the parties, (2) that she was not guilty on the date of the institution of the suit. After finding the facts the chancellor proceeded to announce the law controlling the facts. We are not required to review or comment upon the chancellor's finding of facts; for, as we have stated, the evidence was in direct conflict, and we are unable to say that he was manifestly wrong in his conclusions. So we have a record before us presenting, purely and simply, a question of law; the facts being ascertained.

Concretely stated, was the trial court empowered to grant the relief it did not grant, when it determined that the cause of complaint did not exist when the suit was filed for relief? Broadly speaking, it is quite sure that a cause of action may exist to-day and not exist to-morrow; the cause of action might exist when the suit was begun and lost before the day of judgment. To illustrate, a suit may be brought on a promissory note, due and unpaid, but before the trial the note has been paid, and therefore a judgment cannot be entered. A trustee in a deed of trust may have a right to institute replevin for personal property after condition of the deed is broken, but if he postpones his suit until the debt secured is paid, he loses his cause of action. Illustrations might be multiplied. The general rule is, and must be, that a cause of action must exist when the suit to enforce same is begun. If one of the parties to a marriage contract commits adultery, and the act is not condoned by the injured party, it is doubtless true that proof of repentance and promised reformation before suit for divorce is filed will not destroy the cause of action. It may be also true that habitual cruel and inhuman treatment, as a cause for divorce, is not satisfied by repentance. The first is a completed act--a fact established. The latter is a personal indignity that regrets and a promise of reform may not cure. In cases where desertion for stated periods gives a cause of action, many courts have held that an offer to return will not take away the matured cause of action. In the present case, no moral crime is charged or proven, and no personal indignity has been inflicted upon the complainant. The story told by this record is a pathetic one. The defendant was a great sufferer for a long period, from no fault of her own, and, according to the evidence believed by the chancellor, she took drugs to palliate her physical pains to such an extent and period of time that she became an habitual and excessive user of these insidious drugs. Finally, the husband and wife separated, and then it was that defendant waged a brave fight, and before the bill was filed, she had succeeded in overcoming the enemy and was restored to normal health of body and mind.

Did the chancellor fall into an error when he construed the law to be that complainant was, under those circumstances, entitled to a decree severing the ties that bound him to his wife? The appellant's counsel answer this question in the affirmative and cite in support of their contention the following authorities, viz.: McMahon, 170 Ala, 238, 54 So. 165. We think the Alabama court states the appellant's side of this case more definitely and clearly, perhaps, than any other case called to our attention:

"Paragraph 6 of section 3793, which said section enumerates certain grounds for divorce says: 'For becoming addicted after marriage to habitual drunkenness.' This section does not, of course, mean that if a party becomes addicted to the habit after marriage, but overcomes same for a reasonable period before any steps were taken for a divorce, and no steps were taken to get a divorce until after the habit had been overcome, the once existence of the habit, which did not continue to exist at or near the time of filing of the bill, would be a ground for divorce. Here the parties were married twenty-three years before the bill was filed, and the respondent may have become addicted to the habit shortly after the marriage, yet may have overcome it for years before the bill was filed, and the statute was not intended to apply to such a case. The habit must be fixed, and must continue until the suit is brought. Gourlay v. Gourlay, 16 R.I. 705, 19 A. 142; 9 Am. & Eng. Encyc. of Law, 814, and cases cited in notes 8 and 9."

The supreme court of Massachusetts, in the case of Burt v. Burt, 168 Mass. 204, 46 N.E. 622, speaking of a case similar to the present case, under a statute making "gross and confirmed drunkenness" a cause for divorce, said, that "gross and confirmed drunkenness" is a condition, and before a divorce could be granted under this statute, the condition "must exist when the libel is filed." it may be said that the facts of that case showed that the defendant still used...