Scoland v. Scoland

The opinion of the court was delivered by

Stiles, J. —

In this case the action for divorce is based upon alleged acts of cruelty, and it was entirely proper that other acts of cruelty occurring subsequently to the commencement of the action should be alleged by supplemental complaint. Whether they should be allowed to be shown at so late a stage of the proceedings was for the superior court in its discretion to say. No harm seems to have come of it.

A motion for a non-suit was made at the close of plaintiff’s testimony, which was denied. Technically a motion for a non-suit is not applicable to an equitable action (Code Proe., § 409), but treating this as a motion to dismiss, we find the alleged error, if any, cured by defendant’s proceeding with the case. To reap advantage from such a motion in equity the party must have stood upon it. Cattell v. Fergusson, 3 Wash. 541 (28 Pac. Rep. 751).

In case before us the wife charges the husband with maliciously accusing her of adultery and other unchaste conduct. He admits making the accusations, but denies the malice, and pleads affirmatively that in the face of his protest she received the visite and attentions of other men, particularly in his absence from home. Each side proved what might be termed a fairly good case, if either had been the complainant, except that the husband failed entirely to show reprehensible conduct on the part of his wife toward any but the one man particularly named in his answer. She gave him just and abundant cause for his jealousy, and he was brutal and indecent in his exposure of her faults. There wasno convincing proof thatshehad been criminally intimate with any man. She was certainly indiscreet in receiving the visits of a man other than her husband, as the testimony shows she did; but the man was introduced into his house by the husband, and these visits had been encouraged by the husband for three or four years before he made any objection to them. When he made positive objection they ceased, and had not been renewed up to the time this action was commenced, six or eight months afterward. But notwithstanding the apparent cessation of this cause of his trouble, the husband goes on with his talk, and even on the witness stand swears that he would never live with his wife again unless she publicly acknowledged her adultery with at. least two men. The impression we get from his actions and testimony is, that he is perhaps unbalanced in his mind on the two subjects of religion and the unfaithfulness of his wife. His evidence probably aided materially in securing the decree against him, as it shows him determined to maintain her guilt to be a fact with or without proof, and without regard to consequences.

The court below made the usual findings in cases of this kind, and while we might, if trying the cause originally, view some of the facts differently from the way they seem to have been regarded here, the presence of the parties is of so great importance in these cases that we ought not, where there is such a degree of doubt, reverse a decree. It is probable that nothing will ever happen to bring this husband and wife into-anything like amicable relations,and to reverse the decree might be merely to set them adrift, without hope of resuming the marital relation, perhaps to the injury of society and-the destruction of themselves and their children.

The division of their property was not unfair. The judgment is affirmed, each party to pay his or her own costs of this appeal.

Dunbab and Scott, JJ., concur.

Anders, C. J., not sitting.