Hensley v. Hensley

MELVIN, J.

Robert C. Hensley brought an action for divorce against Annie E: Hensley. She answered, denying the allegations of the complaint, and by cross-complaint she asked for a divorce from her husband on the grounds of desertion, cruelty, and nonsupport, and prayed for the re

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scission of a certain agreement by which the property matters had been settled out of court about a year before the complaint was filed. By stipulation the allegations of the cross-complaint were deemed denied.

At the close of defendant’s evidence on her cross-complaint, plaintiff moved for a nonsuit as to cross-complainant’s cause of action for cancellation of the agreement between the parties. This motion was granted. Upon the merits of the divorce case the defendant and cross-complainant prevailed. There was also an order requiring plaintiff to pay a certain sum, monthly, for the support of the minor child of the parties to the action. Defendant and cross-complainant appeals, however, from the judgment of nonsuit and from an order denying her motion for a new trial.

The plaintiff and defendant were married in 1907. In September, 1910, Hensley left his wife and went to Canada. He' had sold some property in Oregon for about thirty thousand dollars. Mrs. Hensley had employed counsel to represent her and there had been somé investigation on the part of these gentlemen relative to Mr. Hensley’s financial affairs. In August, 1912, Mr. Davis, one of Mrs. Hensley’s counsel, wrote to his associate in the matter, Mr. H. H. Chase, of San Bernardino, advising him that Hensley had sold the ranch at Ashland, Oregon, for thirty thousand dollars, together with all the furniture and household effects. In a later letter written during the same month to the same correspondent there was information to the effect that Hensley had bought property, placing it in the names of his children. Mr. Davis also wrote that he was quite certain that Hensley had money invested in business with a son in Calgary, Alberta, Canada. Later, Mr. Davis wrote again stating that Hensley was worth thirty-two thousand dollars when he left Oregon.

On October 10, 1912, Mrs. Hensley filed a suit for separate maintenance. In her verified complaint it was alleged that Hensley had thirty-one thousand dollars in his pocket when he left Oregon and went to Canada. She also averred in that pleading that her husband owned an equity of ten thousand five hundred dollars in real estate near Colton, California, standing in the name of his son, and that he had “more than twenty thousand dollars in other property,” the location and manner of investment being unknown to her. Before the filing o.f Hensley’s answer in the suit for maintenance there