Smedley v. Smedley , 30 Ala. 714 ( 1857 )

HICE, O. J.

According to tbe authorities, tbe suit for divorce, on tbe ground of cruelty, is substantially a proceeding quia timet. Tbe court interferes, not merely because acts of cruelty have been committed, nor to punish such acts, but to afford protection to the complainant for tbe future. — Bishop on Marriage and Divorce, §§ 454-501, where the authorities are collected.

Any conduct on tbe part of tbe husband, which furnishes reasonable apprehension that tbe continuance of tbe cohabitation would be attended with bodily barm to the wife, is legal cruelty to ber. Of course, an act of unlawful violence on bis part, occasioning pain and injury to ber, and implying future risk to ber life, limb, or health, amounts to cruelty. But there may be cruelty in him, ■without actual violence. Thus, if he starve bis wife, or, if be refuse to supply ber with tbe necessaries of life, when it is in bis power to supply them, it is cruelty in him.

Tbe case made by tbe bill of the wife, now under consideration, against her husband, is a case of marital tyranny ; of deliberate, unmanly, and continuous cruelty. The bill was filed within less than six years after the marriage, and shows that the complainant had resided in this State three years before the bill was filed ; that the cruelty complained of began soon after the marriage; and that the husband persisted in it to the filing of the bill. We think the acts of cruelty are sufficiently alleged, and that there was no necessity for greater particularity in alleging the time when and the place where the cruelty occurred. To hold otherwise, would be to hold that greater particularity, in allegations of time and place, is requisite in a bill filed under the Code, for divorce on the ground of cruelty, than in indictments framed under the Code for the highest offenses known to our law.

It is true, that section 1966 of the Code provides that when a divorce on the ground of adultery is desired, the suit must be brought “within one year after the discovery of the act (of adultery) charged,” or no decree can be rendered for the complainant. But there is no such provision as to a suit for divorce on the ground of cruelty ; and we have no authority for requiring a complainant, in such a suit as this, to allege more than is alleged in the present bill.

The chancellor erred, in sustaining the demurrer, and dismissing the bill; and his decree is reversed, and the cause remanded. The appellee must pay the costs of the appeal.