Texas State Gazette. (Austin, Tex.), Vol. 1, No. 10, Ed. 1, Saturday, October 27, 1849 Page: 4 of 8
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TEXAS STATE GAZETTE
OCT. 27
OPINIONS OF THE
f 'SMEIE GOIBT OF TEXAS.
. Soefllwral the MMcccmhcr Term 1848
Jl
OE$:i WRIGHT Appellant m. MARGARET WRIGHT Appellee
f I From Victoria County.
.i 'Ji ilalemcnti In lie pleadings In nulls for divorrc rejalve to the property
tifthe parties and upon which the restraining order of the court is to be grounded
Should be Vet ified'by the affidavit of the party pecking Auch order.
a. a ne nuiaavit ncco noi oiaic tnat uie party mramsi wiiom tne order is p rave a
... . .. . -.ti.i . . ii . . r
inq pro-
: only to
wliere tne
(property belongs exclusively to the party in possession and In sought to be sub-
: iccicq io incumorunccs.
' '3. Applications (or nllmony fhould be sustained by the oath of the party ask
ing u: ur rviacncc oiiunac iu ciiuuiu me vuun iu ueierminc me umuum iuu
should be allowed.
A. Allocations ia a petition for divorce of " cxeexses. cruel treatment" and
jollier outrages" on 'he part of the defendant and that the ill treatment was of
sucti a nature ns 10 render itietr. itvii.jj together insupportable are vjemus tor
vagaeness una uncertainly
.r
jjLisuesuoyine wasiinx or npom io remove orscmnc propcnyi or tnai
ypertv from nnvnu3e Is In dancer of bclncr destroyed when it is eonchl
'' effect nronertv claimed bv the nfliant. or coinmunitv nroncrtv : alitcr.
V
tion ; and that the writ when desired would bo one of right and port proportional to die mentis of the hnsbnnd until a final decree
would issue almost ns n mattnr of course. . k shnll bo made in the ensc. .. .
The general statutory provisions however regulating lnjunc- whatever may bo the amount ot the wile's property mere is no
lions requires applications for these restraining oiders; and an-
swers thereto to be verified bv the oath of the parties filing" the
same. Vol. State Laws p. 405. This in the opinion of my
probability under the laws regulating marital righls that tho wife
would independent of tho husband have any separate income
sufficient for Iter maintenance and support: whero there is no
brethren to which I assent with some hesitation is sufficiently marriage contract the husband has bylaw all the property under
comprehensive to control applications for tho writ iu this as well ( his control and the presumption is that tho -wife has no income
as IU Oil Oilier Civil turns wuuiuvui may uc uiu oMjcv-i. vi wHuiiMw
of tho controversy.
In coming to this conclusion it will bo necessary to reconcile
nn nnrmrent discreonncv between the provisions in tho 4th section
of tho act under which this suit was brought (p. 20 Laws of means of support; and tho case os 'presented was such in its a
for her separate use mid benefit.
In this case all tho property whether sepnrato or common in
which the wife had any interest was alleged to be in tho posses
sion of the husband and consequently the wife was without tho
wi. oucn vagueness j nui onry ucmurraDie uoi evmence is nuiuuuiiiuit;iii
iU suprort j nor is the defect cured by verdict or decree.
' 0. The general character of a party however infamous forms no ground for
idlvbrce. '
7. A wile may properly sue in her own name for a divorce without the inter
rcjitlon of a prochcln amid.
V Opinion of tho Court delivered by Chief Justice Hemphill.
i-.uThis suit was instituted by tho appellee (who was plaintiff in
-tho court below) for tho purpose of obtaining a divorce from her
Ijmsbaud John I) Wright ond for the delivery to her of her se-
. parato property and tho ono half of the common property of tho
icopjngal partnership
She prayed also for an allowance cf tho sum of two hundred
juid fifty dollar 03 alimony during tho pendency of iho suit ;
and that ah inventory should bo made of her separate and the
'."community pronortyin tho possession of the husband ; and that
ho bo enjoimid from disposing of the same in any manner .whate-
ver and for such other relief as she might be entitled to under
tfiq circumstances of the case.
i' She states that as one of 'tho colonists of Martin Do Leon un
der his first contract sho wan placed ii possession of one league
of.land west of tho Guadalupe river ; that whilst she owned that
niid other prropcrty specified in the petition sho intermarried in
"1828 with tho appellant John D. Wright who afterwards with-
out tho knowledge of the petitioner procured in 1933 a grant to
bo made to him of the said league of land in his own name which
Tact was concealed from the petitioner until 183(5 when she ac-
quired the knowledge of it by chance ; that the said John D.
Wright loft Texas in 1835 nnd that the petitioner occupied and
managed said proporty until 1842; that in the. meantime she dis-
posed of tho slock of cattle for u sum still due and unpaid and the
"ovidenco of which indebtedness is in tho hands of the husband or
liis agents ; that since tho marriage the amount of acquired com-
munity proporty which is specified is considerable and that all
the property separate and common is in the 'possession of the
sajd John Uav(id Wright.
V)':ShQ then makes the general allegation that the said appellant
is guilty of excesses cruel treatment and other outrages towards
the petitioner and that sticli ill treatment is of such a nature as to
vender it insupportable for her to live longer with him.
. I Tho defendant pleaded a general exceptiop. or demurrer for in-
sufficiency and answered denying generally all the allegations
and statements of the petition rind specially ayorring that no was
not guilty of the excesses and cruel treatment laid to his charge.
The appellee in her petition after the usual prayer for divorce
from the bonds of rnatrimonv and for a separation of rwonertv.
prayed further tnat tho sum of two hundred nnd fifty dollars be
allowed her for her support during tho pendency of the suit and
.that the court would cause an inventory of the separate property
.of 'the petitioner and of tho community property which is in the
jjwfsession or the defendant and an injunction restraining him
frjcjm disposing; of the same in any manner whatever.
j.j'At tho first' term of the court after the commencement of the
jjijutt'i on motion of tho plaintiff an order was rhado for tho nllow-
rince'of alimony; and for on injunction restraining the defendant
froni.seUing or otherwise disposing of or removing the property
iii tho plaintiff's petition mentioned.
;74Mauy witnesses were examined ornlly and by deposition and
exceptions wore taken to various opinions of the court overruling
. objections to the admissibility of much of the evidence.
' t!lThe jury found that the plaintiff was entitled to her prayer so
.iffaros the divorco was concerned and for two hundred dollars.
;jho proceeds of a house and lot received" by the defendant and
ipr ono uuuuruu noiiu 01 came now m tne possession or ino ae-
.epejant nnd tho one-half of the other property (cattlo included)
. jSnonqy.nnd demands.
v'The'decree of the court was in conformity with the finding of
.uiu.jiuy yiwi4 wiu iuuuu( uiuer uuu mo uiiutiu suouiu oo couit-
1841) and the general provision regulating the granting and
trial of injunctions. The latter requires both petition and answer
to be sworn to ; tho former declares that the defendant shall not
be compelled to answer on oath nor the petition to be tacefl for
confessed for the want of nn answer but the decree shall be ren-
dered upon full and satisfactory evidence independent of the con-
fession or admission of either party.
In suits for divorce the petitioner is not restricted to the main
purpose for which relief is prayed viz: dissolution from the bonds
of matrimony ; but may also pray for a separation of property
and for the custody and management of the children.
The provision of the statute exempting the defendant from an-
swering on oath and rendering the admissions of the parties in-
competent as proof in tho cause has reference only to tho primary
object of the suit viz the dissolution the matrimonial relation.
The intention of the law was to prevent collusion between the
parties in obtaining the divorce ; and to effect this it was deemed
necessary that the admtssions ot the parties whether mad.e belore
witnesses or in the pleadings or on oath or otherwise should be
disregarded as proof for the establishment of any of tho facts al-
leged as grounds of divorce.
This provision was doubtless borrowed from the doctrines held
in the Ecclesiastical Courts relative to the confessions of the par-
ties in suits of this character.
The rule of the statute excluding the admissions ot the parties
under all circumstances is more broad than that of the Ecclesias
tical Law under which confessions when supported by other
proof or under circumstances repelling all suspicions ot collusion
were admissible as evidence. 2 Mass. H. 154 : 1 1...C. R. 197 ;
Walker's Chan. Ren. 52 : SheJford. 412.
The obje'et of the statutory provision extending no further than
to prevent the answer if verified by affidavit from becoming evi-
dence to affect the matrimonial union should 'control tho con-
struction of the terms employed and limit their operation within
tho reason of tho rule; and parties should not under the lan
guage of the statute without reference to its object be permitted
to obtain the extraordinary writs of the court on unverified state-
ments contrary to the general provisions of law regulating the
issue and trial of- such writs. All statements then in the plead-"
ings in such suits for divorce relative to tho property of the par-
ties and upon which the restraining order of the court is to be
grounded should be verified by the affidavit of theparty seeking
such interposition of the judicial authority.
And here from the course of the able argument of the appellant's
counsel it will be necessary to advert for a moment to the facts
which should be stated as grounds of the application for an in-
junction. In this petition none of the usual averments upon
which such applications in ordinary suits are founded are made
and it is insisted that the petitioner should have set out that the
defendant was destroying or wasting or about to remove or sell
the property or.some other tacts which would show that the pro-
perty was in imminent danger of being destroyed. Under certain
circumstances such allegations would seem to be unnecessary.
jminri n! c ihn otlior issiins
'Tbo appellant assigns eleven distinct grounds of error; some
of which will be noticed-but without regard to their numerical
order of arrangement. . . ' .
. jTha:first js thqt the order granting the injunction was errone-
ous on the ground that there was no Sufficient cause alleged in
the petition for tho grant of the writ and that the petition was not
verified by affidavit.
... enntlrtll fitll nC flirt MAMn:. JJ J !
"V ww" UM u "4" "-' wuvemuig uivorce unu mimony
Jaws of 1841 p. 21 the cot;r.tis authorized to make such tempo-
rary prders respecting the property and tho parties as thpy may
.deem necessary and equitable ; and by the 9th section the hus-
bahdja prohibited after the commencement pf the action from
contracting any debts on uccount of the community or to dispose
dfr.anv; Itinds and slaves beloncrine to the same and nnv snr.h nl.
denattpns made yith n fraudulent view of injuring the rights of
.jjjne.Ay.ue. are.u?piarea to no mm ana. void
ThaJLOfh section provides that nt any time during the pen-
' dency o a suit the wife may for the preservation of her rights
.require an inventory and appraisement of both the real and per-
sonal estate which aroJnjhe possession of. the husband and an
injunction restraining hirn from disposing of any part thereof in
; any manner.
Jfheso and other provisions.of the statute show clearly that in
the6ritemplitfiQn of tho Legisl.nfurQ the rights of tho wife might
.iLWU!nv rc uurnS u' progress ot the suit ana lull pavers wo
';yesM m the court to rnnko all orders and issue all such writs as
jgay be necessary for their conservotion. The terms are emphat-
JifeMlie wifenay require an injunction restraining tjie husbapd
(JMthe spqsitjorqf apy.parj of tho property in any manner
iiSBSiMW 8eem t0 iwperntive on j)ief cmiVjs to issue ?ucli
imBy& tf construed IiallyitouldjbewaTnt
litt a dtscretmn ran hnAmwirorrfn AJr;. ;i'JTO!?A.5itsLf
.. V- - .wu. ... u&njjimnnji ujiuh uiu iiJj;iiv-U7
The object of the suit is a total disruption of the matrimonial
connection ; and during the progress of the cause the wife Svould
have the right to such orders and writs as would secure the pre-
servation of her separate property all of which is by law placed
in tho possession and under the management of the husband
Tho legal power ot the disposition ot this property is not in the
husband antl consequently an inhibition of the exercise of such"
power could not operate injuriously or oppressively upon his
rights andthe writ would be granted on satisfying the court that
such property is in the husband's possession. The wife has an
equal interest in the community property and the husband is for-
bidden by the statute fromjjprrfacting "after the suit atiy debts on
tho account of such property and all alienations in fraud of the
wife's rights are declared to be null and void ; and the court
should on slight showing issue its injunction for the conserva-
tion of this property which the husband is forbidden to incumber
with debts and whose alienations of which in fraud of the wife
are declared to be null and void.
Where the property in the possession of the "husband is exclu
sively his own but upon which the wife has legal-claims or in-
cumbrances she would be entitled to an injunction upon the aver-
ment of her apprehensions on some reasonable grounds that the
property would bo so disposed of as to render a judgment fruitless
if obtained in her favor. These are stated merely as examples of
sufficient allegations under the circumstances referred to and not
as applicable under rfny circumstances which might affect and
control tho rights of the parties in property under the manage-
ment and in the possession of the husband.
Tho injunction in this case extends only to property alleged by
the petitioner to belong to the community or to herself in her in-
dividual right ; . and where the husband is charged with fraudu-
lent conduct in relation to the wife's individual property and with
abandonment at one time of his home family and country for
seven years as is alleged in the petition the court on tho verifi-
cation of the fact of the wife's rights would under the circum
stances without tho statement of any apprehensions on tho part of
tne wiie oe juunea in issuing sucn restraining writs as won in
secure the forthcoming of the property for disposition by tho
event of the suit.
And as the restraining order was granted in term time and no
motion was made for its dissolution in the court below either bo-
fore or after hearing of tho cause and objection is made for the
first time in the appellate court we do not think it expedient or
proper that the injunction should be dissolved except on the con-
tingencies which will bo indicated in the final order. of this court.
It is contended that the order granting alimony wus erroneous
on the grounds that the fads stated in the petition Were not sup-
ported by affidavit and if they had been were insufficient to jus-
tify the order especially as by the grant of the injunction thede.
fqndjn.ltwis precluded from selling property to pay the instal-
lcged facts as would justify the grant of alimony during the pen
dency of tho suit.
In countries governed by the Common Law alimony is granted
during the pendency of the suit on tho principle that the whole
of tho property is supposed by law to bo vested in the husband
and that the wife has no separate fortune of her.own ; and on the
same principle the husband is obliged to puy the expenses of suit
on both sides. Shelford 58G. Hero the ground is different but
much stronger in favor of the allowance of alimony during the
pendency of the suit. The presumption is not that the wife has
no property- and therefore no income ; but that she has property
the income of which is received not by herself but by her husband.
All the property in the possession of the husband is supposod to
be common between him and theAvife ; and if not common there
is an equal probability that it belongs to the wife while the hus-
band receives the entire rents profits and revenues of all the
whole property.
Whore alimony is demanded there is no doubt that the wife
mould as was done in. this case state the means at the disposal of
the husband whether they arise from her own or the community
estate or the' separate property of the husband. Such statement
is technically called an allegation ot lncultics; and in the ecclesi-
astical courts the defendant is required to respond on oath though
his answers are not altogether conclusive. What would be the
legal effect as oyidence of answers upon oath toj matters upon
which the defendant was not specially interrogated need not be
discussed ; and reference is nmde to the usual practice in such
cases only to show that whether the wife be required or not to
make he statement on oath the responsive statement of the hus-
band must be verified by affidavit.
Asa rule of practice the courts should require applications for
alimony to be sustained by the oath of the party or evidence
aliunde; otherwise they cannot act advisedly in determining upon
the amount which under all the circumstances the husband should
contribute to the support of the wife.
In this case the order for alimony was granted in term time
without exception on the part of the appellee. After the trial of
the cause at the next term a motion to set aside the order was we
think properly overruled.
Tho evidence on the trial showed that the amount of alimony
was not unreasonable and furnished sufficient grounds on which
to sustain the order although it may have issued originally on in-
sufficient proof or Information. On the subject of alimony see
Poynder 246 283 ; Shelford 587 600; Roper on Husband and
Wife p. 308 Note k.
Numerous exceptions were taken to the evidence on various
grounds some of which willhereafter be noticed.
We proceed now to consider the main question in the cause
viz whether under the allegations of the petition any evidence
was admissible to prove the alleged grounds of divorce.
These in the language of the petition were "exces es" "cruel
treatment" and "other outrages" towards the plaintiff on the part
of defendant and thatthe ill treatment was of such a nature as to
render their living together insupportable.
Whether evidence would be admissible under such charges
must depend upon the rules in relation to certainty in pleading
generally and especially in controversies of this character.
The statute regulating the subject matter requires a full and
clear statement of the cause of action and such other allegations
pertinent to the cause as may be deemed necessary to sustain tho
suit. " -
This full nnd clear statement must embrace the material facts
upon which the complaint is founded ; or if an offence is charged
theprincipal facts constituting this charge together with the ma.
teiTorcTrcifmsfancesor manner time and" placVof their occurrence.
This explicit statement of facts is necessary that the defendant
may know what he is called upon to answer and be enabled to
make the proper defence ; and that tho tribunal having cogni-
zance of the controversy may be apprized of the matter at issue
and be enabled to administer the proper remedial justice. Storv
on Equity Pleading Sec. 23 ; Cooper 5; Milford 37; Chittv
a suuicjeTGinc.ihej:maunenancelduring theTpendencyjoff
Vol. 1 p. 244 ; Covvper. 682 ; Forense Mexican nor Pena v Pefin.
Vol. 1 p. ; 6 M. R. 510 ; 12 M. R. 693 ; Mitchell w.'Mines
Texas Rep. 1 Vol. p.
In the ecclesiastical tribunals in England before which alone
suits are instituted for separation from bed and board on thn
ground of cruelty the rule is that the libel should specify the acts
oi cruelty ana wnen ana wnere committed though minute nets
need not be pleaded and can properly come out in the evidence.
Shelford p. 398 431.
The authorities aro uniform in requiring that in suits brought
for divorce on the grounds of adultery or cruelty the aefs of
adultery or cruelty must be specifically stated See Fellows vs.
Fellows 8 N. H. Rep. 160 ; 1 Missouri Rep. 228 ; 2 John. Chan.
Rep. 225. Or whero desertion without snffioient cause and
against tlje consent of the other party is ground for divorce it will
not be sufficient to state that the libellee unnecessarily and with-
out sufficient cause abandoned the libellant; but the circum-
stances attending the desertion must bo particularly stated that
the court may judge of the legal sufficiency of the complaint.
UN. H. Rep. 224;' 12 N. IT. Rep. p. 80. -
The allegations of the petitioner tested by the provision of the
statute and tho rules of pleading particularly in controversies of
this character are vicious from the want of any specification of
facts constituting the offences or even averments of a course of
misconduct from which the class of facts lelied upon might be in-
ferred. .
The terms of the statute excesses cruel treatment and outra-
ges are conclusions from facts or rather complex questions of
law and fact the constituent acts and circumstances of which
should bo set forth that the Court may judge whether in legal
contemplation they nre within the description of the offences that
are by statute good grounds for divorco.
Tho defendant is entitled to have the judgment of tho court
law before hoican bejcon ino Tea to inrocecd'torinl.nn tKpS-fnis.
Tin rigirt WiaTe charge with-
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Matthewson, R. C. Texas State Gazette. (Austin, Tex.), Vol. 1, No. 10, Ed. 1, Saturday, October 27, 1849, newspaper, October 27, 1849; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth80901/m1/4/: accessed April 28, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting The Dolph Briscoe Center for American History.