Wright v. Wright

• Decision Date: 31 December 1848
• Citation: 3 Tex. 168
• Parties: JOHN D. WRIGHT v. MARGARET T. WRIGHT
• Court: Texas Supreme Court

3 Tex. 168

JOHN D. WRIGHT

v.MARGARET T. WRIGHT

Supreme Court of Texas.

December Term, 1848.

Appeal from Victoria County.

In a suit brought by the wife for a divorce, she is entitled to an injunction to restrain her husband from selling or incumbering the community property in any manner whatever, pendente lite.

The provisions of the statute exempting defendants in suits for divorce from answering on oath, and rendering the admissions of the parties incompetent as proof, have reference only to the main object of the suit -- the dissolution of the marriage. They do not apply to such statements in the pleadings as relate to the property of the parties, and upon which the restraining order of the court is to be grounded. These must be verified by the affidavit of the party.

Applications for alimony should be sustained by the oath of the party, or evidence aliunde. Without this the court cannot act advisedly in determining the amount which the husband should contribute for the support of the wife.

In suits for divorce, the acts complained of must be specifically stated, as to the time, place and material circumstances. General charges of cruelty, adultery, excesses, etc., are not sufficient to sustain the action.

The terms “excesses, cruel treatment, and outrages” employed in the statute are conclusions from facts. The acts which constitute them must be stated, that the court may judge whether in legal contemplation they amount to the offenses which authorize a divorce. [ Ante, 79; 6 Tex. 3;7 Tex. 3, 538;10 Tex. 359.]

An explicit statement of the facts upon which the plaintiff relies to sustain the charge is also necessary, to enable the defendant to come prepared for his defense. Proof should not be received to sustain mere general charges, without specifications.

The duty of the jury in suits of this character is only to ascertain the truth or falsehood of the allegations contained in the petition. The court must determine whether the matters charged and established are sufficient in law to authorize a divorce.

A demurrer to a plea of justification, aspersing the general character of the plaintiff, without stating particular acts of bad conduct, does not admit the truth of the charge. It is only saying that the plea is impertinent, and that the law does not require any answer to it.

A wife may properly sue in her own name for a divorce, without the intervention of a prochein ami. She may also do so whenever it becomes necessary for her to demand the protection of the courts, adversely to her husband, or for the preservation of her property.

The facts of this case are generally stated in the opinion of the court. There is an assignment of errors spoken of in the opinion, consisting of eleven distinct grounds of error urged against the judgment, but as it is not found among the papers of the cause, the reporters are unable to give it here. The arguments of the counsel appear to have been based upon that assignment of errors, but without stating the several grounds in their order, or in the language in which they were presented.

MITCHELL for appellant.

One of the errors assigned is, that the suit is brought by a feme covert, in her own name, without the intervention of a prochein ami. This alone is sufficient to require the court to dismiss the cause. [2 Howard's R. 753; 2 Story's Eq. 651; Cooper's Eq. Pl. 163; 2 Hill (S. C.) R. 26.]

The order for alimony was granted upon the allegations of the petition unsupported by the affidavit of the party or testimony aliunde. This was error. [Laws of Texas 1841, p. 21, sec. 8; 1 Texas R. 58, 481; 1 McCord Ch. 197.]

It was error in the judge to refuse to set aside the order for alimony when the motion was made at the ensuing term of the court, upon the ground that the order was improvidently made upon the allegations of the petition, unsupported by affidavit or other evidence; and which allegations, if sustained, present no case authorizing it.

The petition does not state such facts, explicitly averred, as show that it was “insupportable” for the parties to live together as husband and wife. It is essential that the facts should be so stated: 1st, to control the testimony; and 2d, to apprise the defendant of the nature of the charges to be exhibited against him by the testimony. [2 How. R. 753; Texas Laws, 1841, p. 21; and Texas Reports cited above.]

The injunction was erroneously granted because the petition alleges no fact authorizing it. It does not aver that the property was in imminent danger of being destroyed or so disposed of that the petitioner's judgment, when obtained, would be fruitless. It was injurious and oppressive to the defendant, because it prevented him from disposing of property at private sale, to enable him to comply with the order for alimony, and forced him to submit to the sacrifice of sales made quarterly, under fi. fa. in default of the payment of the alimony. The injunction, having been improvidently granted, it ought to have been dissolved on motion.

There is no sufficient ground alleged in the petition either for a divorce or alimony, nor does the proof show a proper case for either. “A few harsh, ill-humored words, used six or eight years ago by the appellant to the appellee, is the head and front of his offending.” “Mere petulance of language, austerity of temper, rudeness of manners, or even occasional sallies of passion, if they do not threaten bodily hurt, will not authorize a decree for a divorce.” “The wife must disarm such a disposition in her husband by the weapon of kindness.” [2 Howard, 754; 2 Kent's Com. 126; 1 Texas R. 58, 481.]

It was error to permit testimony to be given of the general character of the defendant. If such testimony would be admissible under proper averments in the petition, it was inadmissible in this case, where there was no specific charge of general bad character. The defendant was not required to come in prepared to prove all the transactions of his life. Besides, the testimony did not relate to a loss of character after the marriage. It applied to his whole life, and the wife had no right to complain of his want of character before marriage.

The petition is defective in setting out two separate and distinct causes of action. One in the nature of an ejectment upon an alleged title to land, and triable in a court of law, and the other for a divorce, triable in a court of chancery. Granting that our courts have equity and law jurisdiction, still “they are separate and independent of each other, and no more capable, from their very natures, of being mixed, commingled, interfused and blended, than water and oil. When our law says, in substance, that the court shall proceed to try the cause upon the allegations and proofs of the parties, without any distinction between law and equity, it only intended, as is confidently believed, to permit an equitable defense, technically such, to be set up to bar or avoid the consequences of an action of law, and mutatis mutandis.”

The case, or rather cases, presented in the petition, require the action of a judge in a court of law, and the action of a chancellor in a court of equity, at one and the same time. It is a misjoinder of the causes of action which the law does not tolerate, and is rendered more conspicuous in this case by the final judgment of the court as to one-half of the action, and a continuance of the cause as to the other half. [Laws of Texas, 1841, p. 20, sec. 4.]

“The appellee's separation from her husband was wrongful; joining her claim of property in the petition was wrongful; every separate order of the court in her favor was wrongful, and the decree of the court was wrongful.” [2 Dessaus. 45; 4 Id. 33, 99;1 McCord, 209; 1 McMullen's Eq. 84; 9 Dana R. 52; 10 Mo. R. 499.]

CUNNINGHAM for appellee.

The errors set forth in appellant's assignment are reducible to four heads. The first is the error alleged in granting the injunction.

The 6th section of the law of 1841 gives the right to the court to make any temporary orders respecting the property, and an order restraining the appellant is within this power, and must be presumed by this court to have been granted advisedly. It was granted in term time, and does not appear to have been excepted to, or upon what evidence it was made. There is no provision in this law requiring the petition to be sworn to. There was then no error in refusing to dissolve the injunction upon motion, if such a motion was made, which does not appear. [Laws Texas, vol. 5, p. 17.]

2d. As to the order granting alimony. It is made the duty of the court to make proper allowance for alimony. [Laws 1841, sec. 8.] There was no exception to the order when made, and consequently there was no error in refusing afterwards to set it aside.

3d. Errors alleged in overruling objections to questions put to the witnesses by the counsel for appellee. The objections to the questions were, first, that some of them were leading; and secondly, in regard to the general character of the defendant below. The questions called leading were only such as were necessary to bring the minds of the witnesses to the subject under investigation. The answers to them were immaterial. There was no error in overruling the other objections. The character of the party, from the very nature of the action, may be shown, as it may in mitigation of damages in slander, libel, seduction, breach of marriage promise, etc. Where excesses are charged, it is the very gist of the action. Excesses may exist in secret vices or notorious want of principle, as well as in open acts of violence or cruelty. Loss of character is one of the best evidences of excesses and outrages. A character such as the appellant has, according to the testimony of the witnesses, is such an outrage as would render it insupportable for any woman of ordinary feeling and pride to live with him. Besides, as a matter of inducement the proof of character was admissible, because it showed good...