De Haley v. Haley

McKinstry, J. The court below should have sustained the demurrer to the complaint.

The action is for divorce. The complaint avers the defendant was guilty of extreme cruelty, in that, in another action brought by her against him, he filed an affidavit containing statements of want of chastity on her part prior to their marriage; and in that, in an action brought by him against her, he filed a complaint charging that prior to the marriage of these parties she was pregnant by another man. The complaint herein avers that the statements of defendant, in the affidavit and complaint referred to were wholly false and malicious.

The complaint herein does not directly state the character of the two actions- mentioned, or of the issues made by the pleadings in either. It may, however, be inferred from the allegations as a whole that both were actions [490]for divorce,—the one brought by the plaintiff, the other by the defendant herein.

The complaint does not show what was the particular motion, application, or proceeding in which the affidavit was filed, nor does it appear therefrom but the statements in the affidavit wrere relevant and material to the issue presented on the motion, application, or proceeding.

There is no averment that either the action brought by the plaintiff, in which the affidavit was filed, or the particular proceeding in such action in which the affidavit was filed, has terminated adversely to the present defendant, or terminated at all. And there is no averment that the action brought by the defendant herein against the present plaintiff has come to an end in any way.

1. While the action brought by the wife for a divorce was pending, and the proceeding in such action, in which the affidavit of the husband was filed, was undetermined, could the wife bring the present action, charging as an act of extreme cruelty the making by her husband of the statements contained in the affidavit?

2. While the action for divorce brought by the husband (defendant herein) against his wife (plaintiff herein) was still pending and undetermined, could the latter commence the present action, and rely, as ground for divorce, upon statements contained in the complaint of the husband showing fraud by the present plaintiff in the contracting of the marriage?