Wagner v. Wagner

• Decision Date: 16 November 1888
• Parties: FRANK WAGNER <I>vs.</I> AMELIA WAGNER.
• Court: Minnesota Supreme Court

39 Minn. 394

FRANK WAGNER vs. AMELIA WAGNER.

Supreme Court of Minnesota.

November 16, 1888.

This action was brought in the district court for Hennepin county, and was tried by Collins, J., (acting for a judge of the 4th district.) Defendant appeals from an order refusing a new trial. Before the trial, the defendant moved that the prosecution of the action be stayed until the plaintiff should comply with an order of the same court, (made in another action for divorce pending between the same parties, mentioned in the opinion,) requiring him to pay the defendant counsel fees and temporary alimony, the court having already adjudged plaintiff to be in contempt for disobedience to such order. The motion was denied. At the opening of the trial the defendant, on the same grounds, objected to the trial being had. The objection was overruled, and defendant excepted

C. H. Benton, for appellant.

Robinson & Baker, for respondent.

DICKINSON, J.¹

This is an action for a divorce upon the grounds of desertion and adultery. The action was commenced in August, 1887. The court, finding in favor of the plaintiff upon the issue of desertion alone, ordered a judgment for a divorce. The defendant appeals from an order refusing a new trial. In June, 1884, the wife, having left her husband's home, commenced an action for divorce on the ground of cruel and inhuman treatment. Upon trial of that action the relief sought was denied. In February, 1885, the husband sued for divorce on the ground of adultery. After a trial, relief was refused in that action also. In June, 1885, the wife sued for a limited divorce, on the ground of the husband's conduct being such as to render cohabitation unsafe and improper. This relief was also denied, and the wife appealed to this court. A new trial was granted. (Wagner v. Wagner, 36 Minn. 239; 30 N. W. Rep. 766.) That action is still pending in the district court. During the pendency of these actions the court made allowances out of the property of the husband for the support of the wife, she living apart from him ever since June, 1884. The question is presented whether the finding by the court of wilful desertion, continued during the period of three years, was justified, in view of the commencement and pendency during a part of that time, of this plaintiff's action for divorce upon the alleged ground of adultery.

It may be accepted, as a general proposition, that the desertion which will afford a ground for divorce must have been, in legal contemplation, continuous for the period named in the statute. The separation of the deserting party must have been unjustifiable. It may also be conceded that, upon an action being brought against a wife for a divorce upon the ground of her alleged adultery, she being in fact not guilty of the offence, she would be justified in leaving, or, if absent, in remaining away from, her husband pending such an action; and in general, under such circumstances, the period of desertion would be interrupted. Ford v. Ford, 143 Mass. 577, (10 N. E. Rep. 474;) Porritt v. Porritt, 18 Mich. 420. But from the existence of such a state of facts such a result does not necessarily follow. If a defendant, resisting an action founded upon her alleged desertion, relies upon such an...