Cummins v. Cummins

Indiana Court of Appeals

Cummins v. Cummins

66 N.E. 915, 30 Ind. App. 671, 1903 Ind. App. LEXIS 68

CourtIndiana Court of Appeals

DecidedApril 1, 1903

DocketNo. 4,392

StatusPublished

Cited by4 cases

This text of 66 N.E. 915 (Cummins v. Cummins) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cummins v. Cummins, 66 N.E. 915, 30 Ind. App. 671, 1903 Ind. App. LEXIS 68 (Ind. Ct. App. 1903).

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Opinion

Comstock, J.

The cause was commenced in the Superior Court of Marion County, and upon change of venue was tried in the circuit court of Hancock county, which last named court granted appellee a divorce from appellant upon the ground of abandonment.

Appellant assigns and discusses as error: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) the overruling of appellant’s motion for a new trial; (3) the court had no jurisdiction of the subject-matter.

The objection made to the complaint, to quote from appellant’s brief, is that it “alleges abandonment, but names no time.” The complaint avers that the plaintiff and defendant were married on or about the 1st day of September, 1897, and lived together as husband and wife until the 13th day of August, 1898, when defendant wholly abandoned plaintiff, without cause, and that they have not lived together as husband and wife since; that after said abandonment plaintiff frequently importuned defendant to live [673]*673with him, but she refused so to do-. The complaint was filed March 26, 1901, more than two years after- the alleged abandonment. It is assailed for the first time upon this appeal. It is sufficient to bar another action for the same cause. McCreery v. Nordyke, 23 Ind. App. 630, and cases cited.

The only reason for a new trial discussed is that the judgment of the court is not sustained by sufficient evidence. It is insisted that the residence of appellee was not shown, as required by the statute. Section 1043 Burns 1901, §1031 Ilorner 1901, requires that the residence of the plaintiff in an action for divorce must be proved by at least two witnesses, who are resident householders and freeholders of the State. Such proof is prerequisite to the jurisdiction of the court. Driver v. Driver, 153 Ind. 88. The evidence is in the record, and it appears that only one witness possessing the required qualifications testified as to appellee’s residence. This was not sufficient.

Further reference to the remaining specification of error need not be made:

Appellee makes the point that the record does not show that the court overruled the motion for a new trial. The judgment was rendered November 13, 1901. The motion for a new trial was filed upon the next day of the same term. The order-book entry immediately following this entry is that “the court being fully advised in the premises, overrules the motion hereinbefore made by the defendant herein, to which ruling the defendant objects and excepts. Thereupon appellant prays an appeal.” The motion for a new trial was the only one pending when it was filed, and no other motion was filed afterward. The ruling upon this motion is sufficiently identified and properly presents the question of. the sufficiency of the evidence.

The judgment is reversed, with instruction to the trial court to sustain appellant’s motion for a new trial.

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Comstock, J.

The cause was commenced in the Superior Court of Marion County, and upon change of venue was tried in the circuit court of Hancock county, which last named court granted appellee a divorce from appellant upon the ground of abandonment.

Appellant assigns and discusses as error: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) the overruling of appellant’s motion for a new trial; (3) the court had no jurisdiction of the subject-matter.

The objection made to the complaint, to quote from appellant’s brief, is that it “alleges abandonment, but names no time.” The complaint avers that the plaintiff and defendant were married on or about the 1st day of September, 1897, and lived together as husband and wife until the 13th day of August, 1898, when defendant wholly abandoned plaintiff, without cause, and that they have not lived together as husband and wife since; that after said abandonment plaintiff frequently importuned defendant to live [673]*673with him, but she refused so to do-. The complaint was filed March 26, 1901, more than two years after- the alleged abandonment. It is assailed for the first time upon this appeal. It is sufficient to bar another action for the same cause. McCreery v. Nordyke, 23 Ind. App. 630, and cases cited.

The only reason for a new trial discussed is that the judgment of the court is not sustained by sufficient evidence. It is insisted that the residence of appellee was not shown, as required by the statute. Section 1043 Burns 1901, §1031 Ilorner 1901, requires that the residence of the plaintiff in an action for divorce must be proved by at least two witnesses, who are resident householders and freeholders of the State. Such proof is prerequisite to the jurisdiction of the court. Driver v. Driver, 153 Ind. 88. The evidence is in the record, and it appears that only one witness possessing the required qualifications testified as to appellee’s residence. This was not sufficient.

Further reference to the remaining specification of error need not be made:

Appellee makes the point that the record does not show that the court overruled the motion for a new trial. The judgment was rendered November 13, 1901. The motion for a new trial was filed upon the next day of the same term. The order-book entry immediately following this entry is that “the court being fully advised in the premises, overrules the motion hereinbefore made by the defendant herein, to which ruling the defendant objects and excepts. Thereupon appellant prays an appeal.” The motion for a new trial was the only one pending when it was filed, and no other motion was filed afterward. The ruling upon this motion is sufficiently identified and properly presents the question of. the sufficiency of the evidence.

The judgment is reversed, with instruction to the trial court to sustain appellant’s motion for a new trial.

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Bluebook (online)

66 N.E. 915, 30 Ind. App. 671, 1903 Ind. App. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cummins-v-cummins-indctapp-1903.

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