McClain, J.
1. Appeal: _ preservation tíon ofnsidera' evidence. With the case is submitted a motion to strike from the files an amended abstract of the appellee, setting forth the evidence of one Victor Raybourne, the divorced husband of Lucy Raybourne, with refer- ^ ^ *- ^ 7 ence inability to'contribute anything to the support of the three minor children of Lucy Raybourne, who were born to her during the continuance of the marital relations between them; such children being the three children for whose support defendant was required to contribute under the judgment in this case. It appears from the record that the bill of exceptions contains only the evidence taken on the trial of this case during the 2d and 3d days of March, 1904, and that the testimony of Victor Raybourne was not taken until the 10th day of March of that year; such testimony being given after a continuance of the [55]*55case, rendered' necessary by an amendment to the petition filed after the conclusion of the evidence upon the issue as originally presented, and for the purpose of curing a want of allegation and proof as to the inability of the father of the children to support them. We think the motion must be sustained, for the evidence of Victor Baybourne does not appear to have been preserved in any manner, and therefore it is not a part of the record. There is nothing in the record to show that the witness was examined and his testimony given as set oiit in appellee’s amended abstract. Of course, if the testimony of this witness was not preserved by bill of exceptions or otherwise, it was not a part of the record, and cannot be considered; and the bill of exceptions expressly negatives by its statements the preservation of any evidence taken after the 3d day of March. Without the evidence of Victor Baybourne it does not appear that defendant, the grandfather of the three children of Lucy Baybourne, is liable for their support, for, by Code, section 2211, the grandparent is only liable for the support of his grandchildren in the absence or inability of a nearer relative.
2. paupers: paréntyof ev¡dence.ort: As the case must therefore be reversed and remanded for new trial, it is proper that we should also indicate the conclusion reached on examination of the record, that, even were the evidence of Victor Baybourne to be considered, there is no case made for a judgmént against defendant as to the support of Lucy Baybourne. The liability of deféndant can be predicated only on proof that she is unable, because of physical or mental disability, to earn a living by labor. See Code, sections 2216, 2252. As to her inability to labor, the only evidence is that found in her own testimony, in which she says that she works around for neighbors at washing, sewing, and cleaning house, but that she is not now able to make á living for herself and children, and that she has been receiving assistance from the county. This falls very far short, in our judgment, of such a showing as is necessary to render the de[56]*56fendant liable for her support. She does not establish, by her own testimony or otherwise, any physical or mental disability, and all we have is her statement that in her opinion what she can earn is not sufficient to support herself and children. We do not think that it was the purpose of the statute to render a parent liable for the support of an adult child capable of laboring, who simply finds it impracticable to earn such support for herself and children as she thinks she ought to have.
3’ grandLITY °F parents. With regard to the support of the children it is sufficient to say that their father, who is primarily liable for thqir support, shows himself to be capable of earning a living for himself and a family acquired subsequently to his divorce from Lucy Naybourne, and we are not inclined to the view that the father of a family may, by securing a divorce from his wife, who is the mother of his minor children, and assuming new marital connections and responsibilities, throw upon the grandfather of those children the responsibility of supporting them. The second wife takes the divorced husband cum onere, as it were, and does not acquire prior claim to his earnings as against the children by a former marriage. The defendant is shown to be 6"5 years of age, without income, save $400 per year, which he derives from the rental of 204 acres of land, which is incumbered with- a mortgage of $2,000. He has no other property, and after paying the interest on the mortgage, the taxes, insurance, and necessary repairs he has left less than the amount per year which he is ordered to pay for the support of this daughter and her children.
It seems to us that on the record the judgment is wholly unwarranted and unjust, and it is therefore, reversed.
Free access — add to your briefcase to read the full text and ask questions with AI