Strickland v. Strickland
| Decision Date | 05 November 1906 |
| Parties | STRICKLAND v. STRICKLAND |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor reversed.
Decree reversed.
C. P Harnwell, for appellant.
Roy D Campbell, for appellee.
This was a divorce suit; each party seeking a divorce on the ground of cruel treatment within the meaning of paragraph 5 of section 2672, Kirby's Digest. The chancellor decreed in favor of the husband, and the wife appealed, and since the submission of the case the husband died.
Of course, death terminates a divorce suit; but where property rights depend on the correctness of a divorce decree, and an appeal has been taken from it, it is the duty of the appellate court to review the decree in order to settle the property rights. Nickerson v. Nickerson, 34 Ore. 1, 48 P. 423; Danforth v. Danforth, 111 Ill. 236; Downer v. Howard, 44 Wis. 82; McBee v. McBee, 48 Tenn. 558, 1 Heisk. (Tenn.), 558; Thomas v. Thomas, 57 Md. 504. The rule is otherwise where the cause has been submitted to the trial court, and one party dies before decree. No decree can be entered after death of a party to such suit. 2 Nelson on Marriage and Divorce, § 729a; Wilson v Wilson, 73 Mich. 620, 41 N.W. 817.
An entirely different principle prevails where a decree has actually been rendered during the lifetime of the parties which affects and determines property rights. It then becomes a mere property contest between the wife and heirs at law, and the heirs at law are necessary parties to the proceeding, unless the case has been submitted. Nickerson v. Nickerson, 34 Ore. 1, 48 P. 423; Thomas v. Thomas, 57 Md. 504. When the case has been submitted before death of the party, it is not necessary to bring in the heirs, for the decision relates back to the date of submission. Mead v. Mead, 1 Mo.App. 247; Danforth v. Danforth, 111 Ill. 236.
The justice of these principles is manifest. If it were otherwise, through an error of the chancery court a wife would be deprived of homestead and dower rights because death has overtaken the husband before the appellate court has had an opportunity to correct the error. Therefore it is the duty of the court to review this decree in order to determine whether there was error in severing the marriage between these parties prior to Mr. Strickland's death.
The evidence has been carefully examined, and a sad situation is revealed. There were two children by this marriage and two children by a former marriage of Mr. Strickland, and he seemed to have a great affection for all of his children. An implacable animosity grew up between Mrs. Strickland and her stepchildren, one now a young lady and the other a boy of seventeen or eighteen years of age. Mr. Strickland was afflicted with locomotor ataxia for several years before his death, and Mrs. Strickland is an extremely nervous woman, due to ill health dating back to the birth of her children. Each was possessed of a quick temper, and given to violence of speech. This unfortunate situation rendered domestic peace--to say nothing of happiness--impossible. Mr Strickland's testimony makes out a complete case of cruel treatment entitling him to a divorce, and he is corroborated by his elder children, a friend or two and by some letters written by Mrs. Strickland after the separation. Mrs. Strickland's testimony makes out a complete case of cruel treatment entitling her to divorce, and she is...
To continue reading
Request your trial
-
McClain v. McClain, 5-195
...to have been entirely guiltless before a divorce would be granted. See Malone v. Malone, 76 Ark. 28, 88 S.W. 840; Strickland v. Strickland, 80 Ark. 451, 97 S.W. 659; Healey v. Healey, 77 Ark. 94, 90 S.W. 845; and Preas v. Preas, 188 Ark. 854, 67 S.W.2d 1013. Those cases should still be the ......
-
Neal v. Neal
...of the right of appeal when the decree also adjudicates property rights. 7 Enc. of Proc., page 834. In the case of Strickland v. Strickland, 80 Ark. 451, 97 S.W. 659, the court had decreed in favor of the husband, and the wife appealed, and after the submission of the cause the husband died......
-
Ginsburg v. Ginsburg
...(1989); Owen v. Owen, 208 Ark. 23, 184 S.W.2d 808 (1945); Bradshaw v. Sullivan, 160 Ark. 547, 254 S.W. 1064 (1923); Strickland v. Strickland, 80 Ark. 451, 97 S.W. 659 (1906). In Speer, supra, we cited with approval the The same reasoning is found in 33 A.L.R.4th 47, Divorce Death Pending Ap......
-
Tikalsky v. Tikalsky
...pro tunc unless the complainant was clearly entitled to have such judgment entered while both parties were living. Strickland v. Strickland, 97 S. W. 659, 80 Ark. 451; Estate of Seiler, 128 P. 334, 164 Cal. 181, Ann. Cas. 1914B, 1093; Danforth v. Danforth, 111 Ill. 236, 243; McCurley v. McC......