Engleman v. Engleman , 97 Va. 487 ( 1899 )

Harrison, J.,

delivered the opinion of the court.

This suit was brought by the appellant in the Oircuit Oourt of Rockbridge county to obtain a divorce from the appellee. The Oircuit Oourt held that the appellant had failed to make a case entitling him to the relief asked, and dismissed his bill. Erom this decree an appeal was allowed by one of the judges of this court.

The first assignment of error is that the oourt erred in not excluding the testimony of the appellee. It appears that the depositions of both the appellant and appellee were taken in the cause, while it is conceded here by counsel on both sides that such evidence is wholly incompetent and illegal. There is nothing in the record to warrant the conclusion that the Oircuit Court considered this illegal evidence, and the presumption is that it did not. The conclusion of this court will be based alone upon the legitimate evidence in the case, and therefore m> injury can result from the presence in the record of the deposition of either the appellant or the appellee.

The second assignment of error is that the Circuit Court did n'ot exclude certain letters produced by the appellee and filed in the record purporting to be letters written by her to appellant. In the view we take of this case, it is unnecessary to consider whether these letters are legal evidence or not. The case of the appellee does not rest upon these letters, and their consideration is not necessary in determining the issues involved.

The third assignment of error is that the court erred in decreeing alimony pendente lite contrary to the provisions of the contract and deed of trust of August 10, 1895.

At the date of the deed mentioned, it is clear that appellee did not have in view a suit by her husband for divorce. The record in this case, covering nearly six hundred pages of printed matter, discloses a bitter assault upon the character of the appellee, prosecuted with relentless disregard of her feelings and reputation. The appellee not having divested herself, by the contract referred to, of the right to ask that her husband be required to pay the costs and expense of such a suit, we are of opinion that the sum of $250 allowed by the decrees complained of is without objection.

The fourth and fifth assignments of error are: Eirst, that the court erred in not granting appellant a divorce a vinculo on the ground that appellee deserted the appellant on or about December 1, 1892; and, second, that the court erred in not granting appellant a divorce a vinculo on the ground of appellee’s adultery with Samuel H. Guffey.

So far from the charge of desertion being sustained, it clearly appears that the appellee never deserted her husband, and never contemplated doing so.

The only evidence tending to establish the charge of adultery is that of Samuel Guffey, a married man and a laborer on appellant’s farm, and Sally Guffy, a sister of Samuel. The former testifies to several occasions when he had sexual intercourse with appellee, at one time in the wheat field about two or three o’clock P. ÜML; again about a week later just after dinner in the ice-house; and again in the morning in a stall in the stable. This self-confessed degraded man is shown by the most conclusive evidence to have been offering himself for sale to testify in the case, as he expressed it, “ for the money there was in it.” As a witness, he is utterly discredited, and shown to be unworthy of belief. Sally Guffey is put upon the stand to corroborate Samuel. She testifies that she was an eye-witness to the act of adultery in the wheat field, that she was near enough to the offending parties to “ spit on them,” and made no sign or movement to indicate her presence. The evidence of this witness is inconsistent, incredible, and wholly insufficient to sustain the charge. Appellee has abundantly established, by those who have known her longest and best, a virtuous character. Eo good reputation could stand, if such evidence as is here relied upon was regarded as sufficient to blast it.

A review of the mass of evidence in this record, upon the question of fact we are called upon to determine would be wholly without profit to any one. It is sufficient to say that, after a careful consideration of the whole case, we have no difficulty in reaching the conclusion that appellant-has wholly failed to show himself entitled to the relief he asks.

In the brief for appellee counsel asks that this court make an allowance to appellee of a sum. sufficient to pay reasonable counsel fees for representing her in this court.

The measure of appellant’s liability to pay the expenses of appellee’s defence depends upon his ability to meet such expenses, and in the absence of anything in the record to guide us in the matter, we must hold the allowance already made to be sufficient.

Eor these reasons the decree appealed from must be affirmed.

Affirmed.