Champlin v. Champlin

42 Iowa 169

• Court: Supreme Court of Iowa
• Decided: December 16, 1875
• Status: Published

Opinion

Day, J.

x. divorce-for»i?mouy: practice. I. It is claimed that the court erred in overruling defendant’s motion for a more specific statement of the number, names and residences of her witnesses, an(l the facts expected to be proved by each, to the en¿ that tpe eourt might determine the necessary expense of preparing- for trial. Whilst the court, for his own information, might well have required the plaintiff to make her application more sjiecific in these respects, yet we think the matter was’ so far within the discretion of the court, that the judgment cannot be reversed for his refusal to do so.

2>__._.. presumptions. If the application does not fairly present the facts necessary to enable the court undei’standingly to pass upon it, all the inferences and presumptions which naturap[y aiqse ont 0f the fact of such defective application will be indulged in against the party preferring it. In other words, when the plaintiff does not show the number nor residences of her witnesses, the court should not indulge in a presumption that they are very numerous and that the production of their testimony will be attended with great expense, but should rather act upon the opposite presumption.

II. In view of all the facts disclosed, we think the amount allowed by the court, as temporary alimony, is unreasonably lai’ge.

There is nothing in the record to dispute the facts that defendant 'is able to perform but little labor, that the income of his farm does not exceed.the sum of $250 annually, over taxes and repairs, that he has but his household furniture and $60 in personal property, and that he has five children, some of whom are dependent upon him for support.

The cause< was continued upon the application of plaintiff. For her support and medical care, and the support of her child, about three years old, for the six months which would intervene before .the next term of court, the court allowed her at tlie rate of twelve dollars per week, or more than tlie entire income of defendant for a year. It seems to us, in view of the poverty of defendant, that $100 is the full limit of the amount which should have been assessed against him for the period named.

•Inasmuch as the times have all passed when the payments should have been made as prescribed by the order of the court, plaintiff will have judgment in this court for the amount above named.

With this modification, the judgment is

Affirmed.