Evans v. Evans

44 Ky. 278, 5 B. Mon. 278, 1845 Ky. LEXIS 5

• Court: Court of Appeals of Kentucky
• Decided: April 11, 1845
• Status: Published

Opinion

Judge Breck

delivered tire opinion of the Court.

An act amending the law regulating divorces, approved March 2, 1843, provides, that decrees may be made for divorces, by the proper Courts of this Commonwealth, in favor of the husband, when the wife shall abandon him for the space of one year.

Under that provision of the act, the plaintiff in erjor exhibited his bill in the Circuit Court of Anderson, alledging abandonment by his wife for more than a year previous thereto, and her refusal, although repeatedly requested by him to return, and praying a divorce.

This Court has the power of revising decrees of the Circuit Court refusing divorces. When the fact of abandonment by the wife for the space of one year, is alledged and proved, the husband is entitled to a divorce. Wm. R. Smith for plaintiff.

The defendant answered, not controverting the allegations of the bill, but avowing her intention never to recognize the complainant as her husband.

The allegations of the bill are satisfactorily established by the proof in the cause.

The Court below dismissed the complainant’s bill without prejudice, and he has brought the case before this Court for revision.

That this Court has revisory power over the case, there is no question. It was so settled in Boggess vs Boggess, (4 Dana, 307.)

It seems to us that according to the provisions of the statute, the complainant has manifested his right to a decree for divorce. The expression in the act that decrees may be made for divorces, ^c., must be construed as giving the power to the Court to render such decree, and the right of the party to claim or demand it in a case clearly within the provisions of the act.

The decree is, therefore, reversed, and the cause remanded, that a decree may be rendered divorcing the complainant agreeably to the prayer of his bill.