Swearingen v. Swearingen

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] The first error assigned is, that the fact should have-been submitted to a Jury, to find as to whether or not this action was brought by the plaintiff?

To entitle the libellant to temporary alimony, two things are necessary: marriage and a suit for divorce. Ordinarily,, no inquiry is made as to the authority of Counsel to bring the action. Attorneys are sworn officers of the Court; and as such, amenable for professional misconduct. Their character is usually a sufficientjguaranty that they are not barra- ' tors. But some suspicion having been cast upon the bona fides of this proceeding, we directed, when this case was up before, that some preliminary inquiry should be made upon this subject. We are satisfied, however, that upon a motion ■for temporary alimony, that-it is competent for the Court to ■ decide the matter, so far, at least, as to enable it to award an appropriation. To make up an issue to be submitted to and passed upon by a Jury, would require funds to employ .professional aid, which the feme covert does not possess-. •It would defeat the very end for which this application is ■'made.

[2.] Were the Knowles’s, the sons-in-law of the parties, competent to testify? We concede'that they are interested in the event of this litigation; for if the suit is successful, the law is imperative, that the Jury shall give the property to the •■children, unless they see fit to appropriate a part of it to one -or both of the parents. (Cobb’s Digest, 225.) Still, we hold, there was no impropriety in the Court’s taking the statements ■of these witnesses as it might have done of the wife herself, to show that this was her suit.

[3.] Was the allowance excessive? It must be admitted dhat it was pretty liberal, considering the income of the husband. Yet, it is not so flagrantly extravagant as to compel us to control the discretion of the Judge who granted it.

[4.] Was it error in the Court to make the allowance of ■alimony, to relate back to the commencement of the suit? We see no objection to this. It is usual and proper in such cases.

[5.] In conclusion, we say that it is the privilege of the defendant to plead in bar of .the plaintiff’s right to recover, that this libel has been prosecuted at the instance of the children, or ,a portion of them, without the consent and against the wish of the wife. And upon that issue, disinterested testimony alone should be received. If Mrs. Swearingen is unable to be brought to Court, and it is inconvenient for the presiding Judge to examine her personally, he should appoint two or more fit and proper persons, whose character are above suspicion, and who stand indifferent toward the parties, to ascertain and report to the Court and Jury, whether or not the wife desires to be totally divorced from her husband ? And should it be clearly established that she does, with a full understanding of the consequences, Counsel will take pleasure, no doubt, so to shape the verdict as to do equal justice to parents and children, in the disposition of the property. The defendant may not be without fault;' nevertheless, in the severe and long protracted affliction of his wife, he has been visited by a great misfortune. He should not be stripped of the earnings of his labor for life, and turned out penniless upon the world, in his old age. I speak as a man.