Hudson v. Hudson

CHIPMAN, C.

Divorce on the ground of extreme cruelty. Plaintiff had judgment, from which defendant appeals. She also appeals from sundry orders hereinafter referred to. There is no brief for respondent. The record is in a very unsatisfactory condition, and it has been with much difficulty that we have been able to unravel its perplexities and ascertain just what alleged errors are properly before us. The record is attempted to be brought here by bill of exceptions; we will endeavor to follow appellant’s points as made in her brief.

1. The demurrer on the ground of want of sufficient facts was properly overruled; the complaint alleged numerous and grievous acts of cruelty quite sufficient to constitnte the statutory offense. The motion of defendant for judgment on the pleadings was properly overruled.

2. At the demand of defendant, and against the objection of plaintiff, certain issues of fact were tried by a jury, and the verdict was against defendant. It was not an abuse of discretion'for the court to require defendant to deposit with the clerk one day’s per diem and mileage of the jury, as a condition for making the order. It was within the discretion of the court to refuse a jury on any or all the issues; and it was equally within its discretion to impose reasonable terms in case it granted the jury at the request of one of the parties against the wish of the other.

3. The bill of exceptions, as certified, states that defendant moved for a nonsuit upon the ground of insufficiency of the evidence to entitle plaintiff to the relief demanded. The rec

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ord states as follows: “Said motion for a nonsuit was made after evidence had been given and received in behalf of the plaintiff,

which evidmce was sufficient to prove dll the allegations of the hill of complaint,

and after defendant had introduced all of her evidence in support of her charges of adultery on the part of plaintiff, and after the jury had found and returned into court their verdict that plaintiff was not guilty of adultery with any person named in said amended answer.” It was not error for the court to deny the motion. Appellant claims that the clause noted above in italics was interpolated by the judge, and was error. There is nothing in the certified bill of exceptions to show how the clause came to be inserted or that it was objected to. In a proposed amended bill of exceptions, which the court refused to allow, it appears that this clause was inserted at plaintiff's request and against defendant's objection. Assuming, however, that the judge should not have allowed this clause to be inserted, we cannot see that it injures defendant, for this court will disregard it as an attempt to forestall the very question which is to be examined on the evidence brought up.