Walter v. Walter

• Citation: 117 Ind. 247,20 N.E. 148
• Parties: Walter v. Walter.
• Decision Date: 02 February 1889
• Court: Indiana Supreme Court

117 Ind. 247

20 N.E. 148

Walter

v.Walter.

Supreme Court of Indiana.

February 2, 1889.

Appeal from circuit court, Wabash county; Warren G. Sayre, Special Judge.

Action by Barbara Walter against her husband, John F. Walter, for support for herself and her infant children. The action was brought under Rev. St. Ind. 1881, §§ 5132, 5133. Section 5132 provides that “a married woman may obtain provision for the support of herself, and the infant children of herself and husband, in her custody, in any of the following cases: First, where the husband shall have deserted his wife, or his wife and children, without cause, not leaving her or them sufficient provision for her or their support,” etc. Section 5133 provides that the complaint in such action shall set forth, inter alia, “at least one of the grounds of action as specified in the preceding section.”Ibach & Ibach and J. D. Conner, Jr., for appellant. Cobb & Watkins, for appellee.

Olds, J.

This action was brought by the wife against the husband, under sections 5132, 5133, Rev. St. 1881. There are various errors assigned. One is the insufficiency of the complaint. There was no demurrer filed to the complaint. The objection urged is that the allegations are not sufficient to charge the husband with desertion of his wife and children. The complaint avers that the appellee had conducted herself as a kind and dutiful wife, and appellant was a person of violent temper, and without cause had frequently abused and mistreated appellee; that he charged her with infidelity and adultery with divers persons; that he threatened her life, and drove her away from home, and compelled her to leave her home; and that by reason of the tender years of the children, and the violent and ungovernable temper of appellant, she was compelled to take the children with her. This objection is one that may be obviated by the evidence, and cured by the finding, and is not such a defect as will be considered, when raised for the first time after trial and finding by the court. Burkett v. Holman, 104 Ind. 6, 3 N. E. Rep. 406, and authorities there cited. If counsel desired to test the validity of the complaint for such reason, they should have done so by demurrer. The theory advanced by counsel, that they have the right to have the complaint tested by appellee's demurrer to appellant's answer, which was withdrawn by order of the court, is not tenable.

There was a change of venue from the judge, applied for by appellee and supported by affidavit, which was granted, and an attorney appointed by the judge to try the case. Objection was made to appointment of the attorney as special judge to try the case by appellant. It is sought to raise the question as to the right of a change of venue in a proceeding of this character; also that the appointment of the attorney to try the cause was illegal and unauthorized. These questions are not properly presented, and are not before this court. The ruling of the court in sustaining the motion for change of venue is one act of the court complained of, and the action of the court in appointing an attorney as special judge is another separate act or ruling of the court. There is no exception in the record as to the ruling on the motion for change of venue. The record shows written objections filed to the appointment of the...