Yallaly v. Yallaly

• Decision Date: 28 February 1867
• Citation: 39 Mo. 490
• Parties: SARAH J. YALLALY, BY HER NEXT FRIEND, WILLIAM T. STEPHENS, Respondent, v. THOMAS C. YALLALY, Appellant.
• Court: Missouri Supreme Court

39 Mo. 490

SARAH J. YALLALY, BY HER NEXT FRIEND, WILLIAM T. STEPHENS, Respondent,

v.THOMAS C. YALLALY, Appellant.

Supreme Court of Missouri.

February Term, 1867.

Appeal from DeKalb Circuit Court.

Hall & Oliver, and Vories & Vories, for appellant.

I. The court erred in striking out that part of defendant's answer which set up and charged adultery and other acts of misconduct on the part of plaintiff. The statute provides that the Circuit Court shall have jurisdiction in all cases of divorce or maintenance, and that such cases shall be tried by the court, and that like process and proceedings shall be had in such as are had in other civil cases. It is contended that in all civil cases the defendant may set up in his answer any matter which would be a legal excuse for his failing to do the act, the failing to do which is the gravamen of the action. Under our law a man is not only excused from supporting his wife after she is guilty of wanton adultery, but he has a right by the law to be divorced from her; and although he may not be entitled to a divorce upon an answer or cross-bill to a bill for maintenance, yet it is certainly a defence to her action for maintenance--R. C. 1855, p. 663; Ryan v. Ryan, 9 Mo. 537; 3 Blackf. 203; Burdell v. Burdell, 2 Barb. (S. C.) 473; Griffin v. Griffin, 8 B. Mon. 120.

II. If the answer in this bill pray for more than the defendant was entitled under the law, such surplusage would not deprive the defendant of that which was legal and right--Ryan v. Ryan, 9 Mo. 539.

III. Without reference to the provision in our statute preventing the court from giving relief except to an innocent and injured party, the proceeding being in the nature of a proceeding in equity, no relief would or could be granted to a party who was not innocent, on the well-known ground that no unclean hand could approach the precints of a court of chancery--Palmer v. Palmer, 1 Paige, 275; Daiger v. Daiger, 2 Md. Ch. 335; Battey v. Battey, 1 R. I. 212; Holmes v. Holmes, 4 Barb. (S. C.) 295; Morrell v. Morrell, 2 Barb. (S. C.) 480; Happer v. Happer, 11 Pai. 46.

IV. The adultery of the plaintiff would be an effectual bar to a suit against the defendant for a divorce and alimony founded upon the charge of adultery on his part; then why not bar her right to recover for a smaller offence?--Smith v. Smith, 4 Paige, 432, and cases there cited; 2 Kent's Com. 140-1, and cases there cited; McCutchen v. McCutchen, 11 John. 280.

V. The court also erred in excluding the evidence offered by the defendant to show the general character of the plaintiff for chastity, as it is not to be presumed that a woman who had maintained a good character would be entitled to no more alimony than a mere prostitute, or one who had no character for virtue--Happer v. Happer, 11 Paige, and cases cited.

Ensworth & Lewis, for respondent.

The court committed no error in striking out part of appellant's answer. If the court erred, the appellant failed to save the benefit of the error committed by failing to file bill of exceptions at same term when judgment thereon was given--R. C. 1855, p. 1264, § 28; R. C. 1865, p. 675, § 28.

The court committed no error in ruling out the proposed evidence of the appellant as to the character of respondent. He was bound to support his wife until divorced, or her abandonment of him. If the respondent had proved faithless to appellant, he could have applied for a divorce, and been relieved of his duty to provide for her support.

There is no evidence of improper conduct on her part after her marriage with appellant. There was a condonation on the part of appellant for all acts up to the time he abandoned the respondent, and no evidence tending to prove improper conduct afterwards.

FAGG, Judge, delivered the opinion of the court.

This was a proceeding commenced by the respondent against the appellant in the De Kalb Circuit Court, under the provision of the act concerning divorce and alimony--R. C. 1855, p. 665, § 11.

The petition alleges that in April, 1857, she was lawfully married to the defendant; that they lived together as husband and wife from that period until the month of June, 1863, during all which time she faithfully demeaned herself, and discharged all of the duties that devolved upon her in that relation; that at said last mentioned date defendant, without any good or reasonable cause, abandoned her, and neglected and refused to maintain or...