Peters v. Peters
Peters v. Peters
Opinion of the Court
The original bill praying for a decree for separate maintenance was amended to ask for an absolute divorce. It would not profit the parties or the profession to detail the brief and stormy matrimonial career of these parties. It will suffice to say that they were married May 27, 1920, and finally separated August 15, 1921; one child was born; plaintiff at the time of her marriage was a stenographer and law student; it seems to be conceded that she has since been admitted to the bar; defendant operating under the name of the Twin City Exterminating Company took contracts by the year with hotels and other large institutions to exterminate and keep free from vermin such institutions ; he also did such work by the hour. The business was profitable but not as lucrative as plaintiff claims. After hearing plaintiff’s side of the case for several days, the testimony having clearly made a ease and as clearly established that a reconciliation was out of the question, the trial judge inquired of defendant’s counsel:
“Is there anything in the case more than the question of the division of the property? It seems to me that we have taken up already more time than should be taken up in this matter.”
To this inquiry defendant’s counsel replied: “I don’t think there is, your honor.” The record, we think, fairly discloses that counsel then attempted to reach an agreement upon property matters which was unsuccessful. Defendant’s counsel then called his client to the stand and interrogated him fully as to property matters but made, no inquiry as to his marital troubles and offered no testimony to sustain defendant’s cross-bill. The case was taken under advisement and an audit of defendant’s books by a public accountant was filed with the brief of defendant’s counsel. The trial judge filed an opinion direct
Defendant’s counsel most strenuously urges that the case should be reversed and sent back for a further hearing because defendant has not had his day in court on his cross-bill. It is a sufficient answer to this contention'to say that when the case was- heard’ in the court below no testimony covering the allegations in the cross-bill was offered. Had such testimony been offered no doubt the court would have received it; if he had declined so to do another question, would be presented. As we have pointed out the case: had occupied several days of the time of the court and defendant’s counsel acquiesced in the suggestion of the court that the only question in the case involved property matters and defendant confined his proof to that question. Under these circumstances defendant cannot ask a reversal and a rehearing because the court did not consider testimony not offered.
Defendant’s counsel has assigned error as in an action at law upon the admission of testimony. We hear chancery cases de novo, and it will be sufficient answer to these objections to say that the allegations of the bill and the competent testimony in the case make out a cause for divorce.
We think the provisions for alimony found in the decree should be modified. Plaintiff was there given the household furniture. This, we think, she should have; she had paid for most of it. She was given the custody of the minor child; this, too, was right. She was given $1,200 a year without limit of time, and this was made a lien on defendant’s property. Her allowance should be a lien on defendant’s proper
As thus modified, the decree will be affirmed. Neither party will recover costs in this court.
Reference
- Full Case Name
- PETERS v. PETERS
- Status
- Published