Dorsey v. Goodenow

1 Wright 120, 1 Ohio Ch. 120

• Court: Ohio Supreme Court
• Decided: October 15, 1832
• Status: Published

Opinion

BY THE COURT.

The court below was right in refusing to instruct the jury that the dismissal of a bill for divorce conclusively proved that it was unnecessary to file the bill. It was only evidence-of the existence of a suit, and the judgment or decree thereon. How, or what occasioned the judgment, is the subject of proof dehors the= record. ■ . .

As to the other point: we think that where service is rendered for the wife, against the will of the husband, the fact of service does not afford a legal consideration for an implied assumpsit to pay. Where necessaries are furnished for the subsistence of the wife, the credit is given to the husband. If given to the wife, the husband is not chargeable. 7. T. 432 — 1 Saund. 284 — 5 Taunt. 356. This is not such a ease — here the service was for the wife, in a proceeding against the husband, intended to affect his conjugal rights. It would be difficult, against such facts, to raise a presumption of assent. Nor is it necessary to raise such a presumption to secure the wife a hearing of her complaints in court. Power is possessed by the court to make an allowance to the wife, pendente lite. In a proper case made, the court will make an allowance large enough to enable her to carry on her suit, and to subsist upon while it is •pending.

The judgment is reversed, with costs.