Wass v. Wass.

• Decision Date: 13 November 1895
• Citation: 41 W.Va. 126
• Parties: Wass v. Wass.
• Court: West Virginia Supreme Court

41 W.Va. 126

Wass

v.Wass.

Supreme Court of Appeals of West Virginia.

Submitted June 13, 1895

Decided Nov. 13, 1895.

ce Desertion.

ler the divorce law of this State, husband and wife can eh of them be guilty at one and the same time of wilful ion of the other, and either or both be entitled to a divorce lie bonds of matrimony.

ce Pleadings and Proof.

s for divorce are governed by the general rule that requires ^cree to be justified by both the p'eadings and the proof, must coexist, and therefore must correspond.

ce Collusion of Parties.

state is an implied party to all suits for divorce, and the oust take care, and in some way see that divorces are not d contrary to law, or by suppression of evidence, collu' parties, or by other methods or for other purposes, in on of law.

B. F. Ayres for appellant, cited 23 W. Va. 522; Code, c. 64, s. 5; 28 W. Va. 653; 1 Am. & Eng. Eney. Law p. 180 § 3; Id. note 5 and cases cited; 33 W. Va. 517; Code, c. 64, s. 5; 26 W. Va. 225; 25 W. Va. 295; 30 W. Va. 269; 11 W. Va. 217, 220; 3 Munf. 384; 3 Rand. 263; 5 Munf. 314; 2 Rob. Pr. (old) 287-8; 34 W. Va. 250; 33 W. Va. 517-530; 30 W. Va. 479-490; 30 W. Va. 273; 34 W. Va. 299; 20 S. E. P. 930: 20 S. E. R. 590; 30 W. Va 181; 33 W. Va. 306; 33 W. Va 387; 33 W. Va. 455; 33 W. Va. 516.

R, II. Freer and P. W. Morris for appellee, cited Sands Suit in Equity, 23; 1 Barton Ch'y PI. 266-7-8 and Notes 1, 2; 21 W. Va. 445; 28 1ST. E. R. 948; 59 K". W 400.

Holt, President:

On appeal from decrees of the Circuit Court of Ritchie eounty entered on the 1st day of September, 1893, divorcing William Wass and M. E. Wass from the bonds of matrimony, and ordering the allowance of alimony to the wife, M. E. Wass, to cease and determine as of that date. The decree and order complained of are as follows:

"M. E. Wass v. William Wass. In Equity. On this 1st day of September, 1893, it is ordered and decreed that all suit money and alimony allowed plaintiff against defendant do cease and determine as of this date."

" William Wass vs. Martha E. Wass. In Equity for Divorce. This cause came on this 1st day of September, 1893, to be further-and tin ally heard upon the bill of complaint, the answer of the defendant, with general replication thereto; upon the depositions of divers witnesses taken by the complainant and the defendant, duly returned and tiled; and upon all the papers heretofore read herein and was argued by counsel for complainant and defendant. On consideration whereof, the court is of opinion that, from the great and irreconcilable conflict of evidence in the cause on the charge of adultery, it is not possible to arrive at a satisfactory conclusion as to whether the same is sustained or not, and therefore is compelled to find the same not sustained; but the court is, moreover, of opinion from the evidence that there is no longer any hope of a reconciliation between the parties, and that each one and both are, in a measure, guilty of willful and continued desertion and abandonment of the other, and that the same has continued for more than three years; and being of opinion that, under the prayer for general relief, it is competent to grant relief, doth therefore adjudge, order, decree, and pronounce that, on the ground of willful and continued desertion and abandonment, the complainant, Wit liam Wass, be forever divorced from Martha E. Wass, and that for said cause Martini E. Wass be forever divorced from William Wass, and that the bond of matrimony heretofore entered into and celebrated between them be dissolved, and they each relieved and released from the bonds thereof, and that the rights of each, either initiate or consummate, in the property of the other, real or personal, from this time forth, do cease and determine forever."

(1) M. E. Wrass, the appellant, assigns as error that these decrees complained of are not justified by either the pleadings or by the proofs. (2) The appellee, William Wass, assigns as error, by way of cross assignment, that the charge of adultery, as alleged in his bill, is sustained by the evidence, and should have been made the ground of the decree.

Plaintiff and defendant were married in the year 1869; have three living children one married daughter, aged twenty three; a son in Colorado, aged twenty five; and the third, a boy of twelve or thirteen, still at home.

In 1885 the wife, then thirty nine years old, brought a suit for divorce from bed and board, which was settled and dismissed in 1886, and Mrs. Wass went back and lived with her husband.

On the 2d day of February, 1890, she again left her home, and on the 26th day of February, 1890, she hied her bill in chancer)', praying for a divorce from bed and board alleging that her husband had made a felonious assault upon her; that she had reasonable apprehension of bodily hurt from the defendant, and was afraid to return to him. De fendant answered, plaintiff replied, depositions were taken, and the cause came on for hearing on the 21st day of February, 1891., when the court entered a decree divorcing plaintiff, M. E. Wass, from bed and board until further order; that she be paid a monthly allowance of twelve dollars^ and twenty dollars for her attorney's fees in addition to one hundred dollars theretofore allowed. On the 25th day of June, 1891, her alimony was reduced to eight dollars per month, and the cause was retained on the docket, and leave was granted to either party thereafter to apply by petition, in the manner allowed by law, for any other or further relief, or for any change'or modification of the decree.

By decree entered on the 1st day of September, 1893, it was ordered and decreed "that all suit money and alimony allowed the plaintiff against the defendant do cease and determine as of this date," and on the 28th day of October, 1893, it was ordered that this cause be dropped from the docket as having been heretofore finally determined.

We will take tip first the appellee's assignment of error:

The specific acts of adultery are alleged to have been committed in the month of April, 1889, which was prior to Mrs. Wass' suit for divorce from bed and board, which was instituted on the 26th day of February, 1890, to which William Was, the husband, filed his answer on the 16th day of June, 1890, and in which a decree of divorce from bed and board was entered on the 21st day of February, 1891. The charge of adultery, if then known, should have been set up in bar of the wife's suit, for a divorce for cruelty. See Gleason v. Knapp, 56 Mich. 291 (22 N. W. 865); 2Bish. Mar. & Div. § 1589. The plaintiff, William Wass, however, alleges in Ids bill that he was then ignorant of such fact, The burden of proof is on the plaintiff. Does he sustain the charge by the evidence? The learned judge who tried the cause in the court below says not. More than one hundred witnesses were examined. To go into details would answer no useful purpose. It is enough to...