Whitsell v. Whitsell
| Citation | 47 Ky. 50 |
| Parties | Whitsell v. Whitsell. |
| Decision Date | 13 December 1847 |
| Court | Kentucky Court of Appeals |
Alimony. Maintenance. Evidence.
ERROR TO THE HOPKINS CIRCUIT.
Arnold for plaintiff.
Case stated.
HULDAH WHITSELL having instituted a suit in Chancery against her husband, for alimony, gave him notice of the time of an intended application by her to the Court, for an order on him to pay her a sum sufficient for her support and maintenance for one year. On the trial of the motion, after proof of the destitute condition of the complainant, and that her husband had made no suitable provision for her, and of the amount and value of his estate, the defendant offered to read the depositions of various individuals, in relation to her right to alimony. The evidence was rejected by the Court, and an order made for an allowance to the complainant, of one hundred dollars, for one year. To that order this writ of error, with supersedeas, is prosecuted; and the only question is, did the Court err in rejecting the evidence offered by the defendant.
The act of 1831, on this subject, (1 Stat. Law, 126,) makes it the duty of the Court, without any regard to the merits of the controversy, to provide a support for the wife during its pendency. This duty is imperative on the Court, and for its discharge, admits an inquiry alone in relation to the amount of the husband's estate, and whether or not the wife is suitably provided for by him. The Court therefore did not err in rejecting the evidence offered by the defendant. On the trial of a motion of this kind, the defendant may show that he has made a suitable provision for his wife. There is but one other ground upon which, under the statute, he can rely, to defeat the motion: that is, that the wife is living in adultery. No evidence was offered to establish this defence. The rejected evidence was intended to show that the separation between her and her husband, was the result of her ungovernable temper. This evidence was clearly inadmissible.
On a motion to make an allowance to the wife for her support during the pendency of a suit for alimony, the only proper inquiry is, into the circumstances of the husband. It is the imperative duty of the Court to make a provision, if the wife is not suitably provided, unless the wife be living in adultery; evidence to other points will not, therefore, be admissible on such motion.
Wherefore, the order is affirmed.
To continue reading
Request your trial
-
State ex rel. Gercke v. Seddon
...appeal lies. R. S., sec. 3710; Hecht v. Hecht, 28 Ark. 92; Mitchell v. Mitchell, 20 Kan. 665; Lewis v. Lewis, 20 Mo.App. 546; Whitsett v. Whitsett, 8 B. Mon. 50; Jenkins Jenkins, 91 Ill. 167; Whitmore v. Whitmore, 49 Mich. 417; Krause v. Krause, 23 Wis. 354. The court will weigh the evidenc......
-
Spaulding v. Spaulding
... ... To state the ... question ought to be enough." Other courts have asserted ... similar conclusions. Osgood v. Osgood, 2 ... Paige, 621; Whitsell v. Whitsell, 47 Ky ... 50, 8 B. Mon. 50; Bray v. Bray, 2 Hals. Ch ... 27; Goldsmith v. Goldsmith, 6 Mich. 285; ... Latham v. Latham, 71 Va. 307, ... ...