DocketNumber: Docket No. 74
Citation Numbers: 146 Mich. 686
Judges: Blair, Grant, Hooker, Montgomery, Ostrander
Filed Date: 12/21/1906
Status: Precedential
Modified Date: 9/8/2022
The complainant filed a bill of complaint praying for a divorce. The bill contained the following averments:
“ For upwards of two years immediately preceding the 1st day of January, 1904, the said defendant almost wholly
‘A few years ago this complainant purchased and improved the premises thereafter occupied by them as a homestead in said city of Muskegon, at an expense of nearly $2,500, and then conveyed or caused the same to be conveyed to said defendant. During a period of upwards of two years prior to the 1st day of January, 1904, the said defendant frequently, told this complainant that said homestead belonged to her, and that he had no rights there or therein, and that she wanted him to leave and not return.
“ On New Year’s Day, 1904, after all the provisions for a New Year’s dinner had been supplied, without any excuse whatever, said defendant absented herself from home and refused to cook or prepare such dinner, and the provisions remained uncooked and unprepared, and this complainant was compelled to and did go elsewhere to obtain his dinner.”
The bill also averred that after the separation the defendant refused to join in a deed of real estate which he had theretofore sold on contract.
The answer denies the acts of cruelty charged, and also sets up various acts of misconduct on complainant’s part, and asks the benefit of a cross-bill. Before entering upon the taking of proofs the defendant withdrew so much of
There is authority sustaining the holding of the circuit judge that testimony showing acts of cruelty or misconduct on the part of the complainant wholly disconnected with the acts of defendant complained of is not admissible. See- Warner v. Warner, 31 N. J. Eq. 225. Whether this rule would obtain in this State, in view of our statute (3 Comp. Laws, § 8.625), which provides that no divorce shall be. decreed in any case where the party complaining is guilty of the same crime or misconduct charged against the respondent, we find it unnecessary to determine. It may be said, however, that a divorce cause is never concluded against the judge, and many courts have refused to grant a divorce where the testimony shows a defense not pleaded. See 7 Enc. PI. & Prac. p. 88, and cases cited; 4 Enc. of Evidence, p. 777B, and case cited.
But, if the more stringent rule be accepted, we are still unable to agree with the circuit judge that a case was made out. It does sufficiently appear that the relations between the parties were strained before the time of the alleged neglect of defendant’s household duties, but the record fails to show that this was through defendant’s fault. The complaint that the defendant compelled the complainant to sleep in a cold bare room is wholly unfounded. It appears the stove had been taken down at housecleaning time, and, although there were three men folk at home, including complainant, had not been set up again. There was nothing to prevent complainant from setting the stove up. The defendant should not have been expected to.
The decree is reversed,, and the bill dismissed, with costs of both courts, and an allowance of expense money of $250.
ON MOTION FOR RETAXATION OF COSTS.
Per Curiam. Defendant appealed from a decree granting divorce to the complainant, and the bill was dismissed by this court, with costs.
We are now called upon to review the taxation of costs by the clerk; the questions to be considered having relation to items for witness fees and mileage, and for attendance of witnesses upon the circuit court. Testimony was taken upon the hearing of said cause upon the following dates: November 15th, 16th, and 20th; December 1st, 2d, 14th, and 16th. The cause was argued on December 16th. Adjournments were had as follows: From November 16th to November 20th; from November 20th to December 1st; from December 2d to December 14th. Per diem was taxed for the periods of adjournment; as high as 27 days being allowed for some of the witnesses, although they resided in the city of Muskegon where the court was held. This was erroneous.
Martha Elmore of Holton was allowed for 20 miles’ travel and 22 days’ attendance. It appears that she testified on November 20th, and was then by consent of counsel excused from further attendance. She remained in Muskegon, however, throughout the hearing, being required to do so by defendant, who testified that it was necessary. She first attended November 20th. There
should have been allowed for her:
Three trips, twenty miles each, sixty miles......... $6 00
Six days’attendance............................... 6 00
Total — ........ $12 00
Eidena McMichael, of Muskegon, should have been allowed for:
Four trips of one mile each........................ $0 40
Eight days......................r................. 8 00
Total........................................ $8 40
Clifford Smith lived in Plainwell. The defendant’s affidavit shows that she procured his attendance from that place, and that he necessarily traveled 80 miles. The affidavit of the complainant shows that he did not attend as a witness until after November 30th and after his employment at Plainwell had ceased. This is not contradicted, and we think that his own testimony corroborates this. There should have been allowed for him:
Eighty miles.....-..................... $8 00
Five days........................................ 5 00
Total................... $13 00
Isabelle E. Smith: She is the defendant, and should be allowed:
Mileage, four miles................................ $0 40
Per diem, eight days............................... 8 00
Total.......................................... $8 40
Jane Seymour: There should have been allowed for this witness:
Mileage, three trips, forty miles...................$12 00
Per diem, eleven days ........................■_____ 11 00
Total......-.....-............................ $23 00
Alta Woodring: There should have been allowed for her:
Mileage, three trips, one mile.................... $0 30
Per diem, eight days............................. 8 00
Total......................................... $8 30
Clyde Smith: It is claimed that the defendant should, not be allowed anything for this witness, upon the ground that he was a minor son, 17 years old, living with her, and supported by his father. This is a disputed question. Under the proofs we do not feel justified in disallowing this item. It should be reduced, however, to:
Mileage, four trips, one mile..................... $0 40
Per diem, eight days............................. 8 00
Total ..........................................$8 40-
The amount taxed will be reduced as indicated above. No costs of this proceeding will be allowed.