Behrley v. Behrley

Indiana Supreme Court

Behrley v. Behrley

93 Ind. 255, 1884 Ind. LEXIS 740

CourtIndiana Supreme Court

DecidedFebruary 14, 1884

DocketNo. 11,252

StatusPublished

Cited by30 cases

This text of 93 Ind. 255 (Behrley v. Behrley) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Behrley v. Behrley, 93 Ind. 255, 1884 Ind. LEXIS 740 (Ind. 1884).

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Opinion

Elliott, J.

— We do not find it necessary to set forth all of .the allegations of appellant’s complaint, for there is one which conclusively shows that she can not maintain this action. The complaint seeks a recovery upon an antenuptial contract, and contains this allegation: “ That on the 9th day of August, 1882, she filed her application for a divorce against Remegius Behrley, on the ground of cruel treatment, and afterwards, at the September term, 1882, of the Harrison Circuit Court, and after full appearance to said suit, she was granted a divorce from the defendant on the ground of cruel treatment.” Questions concerning marital rights, as well as property rights growing out of the marriage relation, are deemed to be adjudicated by the decree in the suit for divorce.

In Muckenburg v. Holler, 29 Ind. 139, it was said: “All questions of property between the parties, like that in controversy here, are thus in litigation in a suit for divorce, and must there be settled. The complaint here shows that the parties have been divorced. It shows, therefore, by legal inference, that the subject-matter of this suit was there settled and put at rest.” This ruling is in harmony with a long line •of decisions. Fischli v. Fischli, 1 Blackf. 360 (12 Am. Dec. [256]*256251); Williams v. Williams, 13 Ind. 523; Sullivan v. Learned, 49 Ind. 252; Moon v. Baum, 58 Ind. 194; Rose v. Rose, ante, p. 179.

Filed Feb. 14, 1884.

In a recent treatise it is said: “And a provision under an antenuptial contract, which is plainly intended as a substitute or equivalent for dower in case the wife survives the husband, is barred by their divorce.” Schoul. Dom. Rel. (3d ed.), section 221. It makes no difference for whose fault the divorce is granted. Calame v. Calame, 24 N. J. Eq. 440; Gleason v. Emerson, 51 N. H. 405; Hunt v. Thompson, 61 Mo. 148.

Where a complaint states facts constituting a cause of action, but also states facts which constitute a defence, it will be held bad on demurrer. Calvo v. Davies, 73 N. Y. 211 (29 Am. R. 130).

Judgment affirmed.

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Elliott, J.

— We do not find it necessary to set forth all of .the allegations of appellant’s complaint, for there is one which conclusively shows that she can not maintain this action. The complaint seeks a recovery upon an antenuptial contract, and contains this allegation: “ That on the 9th day of August, 1882, she filed her application for a divorce against Remegius Behrley, on the ground of cruel treatment, and afterwards, at the September term, 1882, of the Harrison Circuit Court, and after full appearance to said suit, she was granted a divorce from the defendant on the ground of cruel treatment.” Questions concerning marital rights, as well as property rights growing out of the marriage relation, are deemed to be adjudicated by the decree in the suit for divorce.

In Muckenburg v. Holler, 29 Ind. 139, it was said: “All questions of property between the parties, like that in controversy here, are thus in litigation in a suit for divorce, and must there be settled. The complaint here shows that the parties have been divorced. It shows, therefore, by legal inference, that the subject-matter of this suit was there settled and put at rest.” This ruling is in harmony with a long line •of decisions. Fischli v. Fischli, 1 Blackf. 360 (12 Am. Dec. [256]*256251); Williams v. Williams, 13 Ind. 523; Sullivan v. Learned, 49 Ind. 252; Moon v. Baum, 58 Ind. 194; Rose v. Rose, ante, p. 179.

Filed Feb. 14, 1884.

In a recent treatise it is said: “And a provision under an antenuptial contract, which is plainly intended as a substitute or equivalent for dower in case the wife survives the husband, is barred by their divorce.” Schoul. Dom. Rel. (3d ed.), section 221. It makes no difference for whose fault the divorce is granted. Calame v. Calame, 24 N. J. Eq. 440; Gleason v. Emerson, 51 N. H. 405; Hunt v. Thompson, 61 Mo. 148.

Where a complaint states facts constituting a cause of action, but also states facts which constitute a defence, it will be held bad on demurrer. Calvo v. Davies, 73 N. Y. 211 (29 Am. R. 130).

Judgment affirmed.

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