Wagner v. Wagner

HarrisoN, J. The plaintiff by this action seeks a divorce from her husband, upon the grounds of desertion, neglect, and cruelty. Each of these grounds is alleged in the complaint as a separate count or cause of action. In the first count plaintiff alleges that the defendant deserted her June 8, 1881, and has, without cause and against her will, continued his desertion since that date. In the second count she alleges that since the eighth day of June, 1881, the defendant has willfully neglected to provide for her the common necessaries of life, although he has had the ability so to do. Upon the allegations of cruelty the court found in favor of the defendant, and this finding is not challenged by either party. The complaint is unverified, and the defendant pleaded a general denial; and as affirmative defenses that at the commencement of the action there was another suit pending between the parties upon the same cause of action; and also that in another action between them for the same cause of action a judgment had been rendered in favor of the defendant prior to the commencement of the present action. The court found that the defendant deserted and abandoned the plaintiff on the first day of June, 1889, and that since that date he had continued his desertion and abandonment, and also that since said date the defendant had willfully neglected to provide for the plaintiff the common necessaries of life, although he had had the ability so to do.

These findings are amply sustained by the evidence. Upon the issue of neglect the plaintiff testified as follows: “ Defendant has done nothing towards my support in the last two years. I have not seen him except [295]here in court at the trial of the last case. Defendant, since June 8, 1881, has not contributed to my support any thing. When my child was born in December, 1881, he came out to see me, and I asked him to give me fifty cents to buy some medicine with, and he refused. He has never had a home since for me to go to. As he went away when my child was born, he asked me when I was coming back to live.with him. I told him I would go when he had a home for me. He said that had nothing to do with it, and he has never advised me he had a home for me.At a former trial defendant did, while on the stand, say, in answer to his attorney, that he wanted me to come back to him, but he did not say he had any place for me. He never had any place for me, and never offered to provide a home for me.” It is true that the defendant testified at the present trial: “I offer now in good faith to take her hack, and provide for her”; but the court was at liberty to determine whether such statement was in reality made in good faith, and was not bound to accept his statement as conclusive.