Dial v. Dial ( 1871 )

OPINION by

Judge Pryor:

The allegations of the petition are sufficient if sustained by the proof to have authorized a judgment for a divorce a vinculo matrimoni by the court below. A residence in the county of Union, where this suit was brought, is alleged for nearly twenty-six years, and also an allegation of cruel and inhumane treatment by the husband, and even if the allegations are insufficient to have authorized such a judgment, they certainly are sufficient to authorize a judgment for a divorce from bed and board. This judgment a mensa et thpro and the allowance to the wife is such a final judgment as may be appealed from. There is no mode of annulling the judgment except as prescribed by the code of practice in section 464, page 129, in which either party may file a petition for that purpose, and the case is heard as other equitable actions. Such a judgment may also be annulled or revoked by the court granting it at any time as provided by the Revised Statutes, but this can only be done by the petition of the parties as provided by the Code.

Busk, for appellant. James, for appellee.

Judgments affecting the rights of property in suits of. this character and allowances made for the maintenance of the wife during the pendency of the action are subjects of an appeal.

The appellant and the appellee had been married and living together as man and wife for about twenty-six years.

Unpleasant family troubles seem to have originated between them without any apparent cause. Their neighbors speak of them both as being clever, industrious citizens, and, although the children who have testified in this case have given a history of the conduct of their father conducing to show that he has occasionally treated his wife horribly, still their devotion to and affection for their mother had induced them no doubt to exaggerate to some extent the history of the wrongs done her. There is no case made out from the proof entitling her to a divorce a vinculo matrimoni, but from their own statements it seems that they are not inclined to live with each other, and the proof indicates that they are equally in fault.

The estate of the husband is valued at about $3,500. The wife is a frail, delicate woman, and unable to labor for her support. The allowance made her by the court below is not deemed sufficient. She should have been allowed not less than the sum of $125 per annum from the time prescribed in the judgment of the court below. The judgment, so far as the allowance to the wife is made, is reversed, with directions to allow the wife not less than the sum of $125 per annum, and to secure this a lien by by the judgment should be retained on the land described in the petition.