Johnston v. Johnston

JAMES, J.

Action for divorce. Appeal by defendant from the decree entered against him. In the complaint of plaintiff were set out two causes of action: one for the desertion of her by defendant, and the other for defendant’s failure to provide her with the necessaries of life. Defendant in his answer denied generally the allegations of plaintiff’s complaint and on this appeal contends that the evidence heard at the trial is insufficient to support the judgment of the court.

The parties were married in the year 1876 in the county of Los Angeles and lived together until about the year 1887,

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when plaintiff left defendant and remained away from him for a great many years, returning again to reside with her husband in 1905. During the interval of her absence she lived with another man as his wife. In September, 1905, defendant was,living at a mining settlement called Cactus Flats in California. After it had been arranged that his wife was to return and live with him, the couple went before a magistrate at San Bernardino and a second marriage ceremony was performed, after which they immediately left for Cqctus Flats and there took up their abode.' In July of the following year, the plaintiff again left the defendant and came tó Los Angeles, where she continued to reside up to the time of the commencement and trial of this action. She testified that her husband had paid her traveling expenses when she left him, and the husband testified that he gave his wife a cheek for $50 at the time of her departure. Plaintiff further testified that defendant was willing that she should go and knew that she never intended to return. As to the cause assigned by her for leaving, we quote her own words as they appear in the transcript of the testimony: “It was his continual accusation of wrong, and another was a continual threat of my life. . . . There was no one there to do wrong with; it was a continual accusation of wrong, and what he was going to do; and if he caught anyone around there, and all this. He carried a shotgun or rifle continuously. I told him if he billed some innocent person it would be a terrible thing; and he said he had a right to kill -anybody that came on his place. And on the thirteenth day of May, 1906, he was very angry; I don’t know why he should be, but it was always just after the stage left. ... I told him that he would have to tell me what in the world had made him act so,, why he should do so, and I told him I would not stand any such treatment as that; I could not live with anybody and live under those conditions; and that was the first cause of our trouble, years and years ago, when I left him, a continual accusation of something wrong. So he got very angry; he took up the shotgun, dragged me into the front room and pulled the shotgun on me, and I took the shotgun away from him, and he knows it. He says he never threatened to kill me; he knows he said that.” The foregoing statement is the substance of all of the material testimony