Surber v. Surber

96 N.E. 126, 176 Ind. 399, 1911 Ind. LEXIS 138

• Court: Indiana Supreme Court
• Decided: October 27, 1911
• Docket: No. 21,963
• Status: Published

Opinion

Morris, J.

On March 25, 1908, Walter M. Surber filed a complaint asking for a divorce from Bertha M. Surber. On November 25, 1908, he filed his amended complaint. Appellee was defaulted and made no defense. The evidence was heard in January, 1909, and a decree was entered for appellee. Prom that decree plaintiff prosecutes this appeal.

The complaint was in two paragraphs. The first paragraph alleges that plaintiff and defendant were married August 15, 1906, and that on November 9, 1906, defendant abandoned plaintiff. The second paragraph charges cruel and inhuman treatment of plaintiff by defendant.

The error assigned is the overruling of appellant’s motion for a new trial. The grounds of the motion were that the decision was contrary to law and was not supported by sufficient evidence.

1. The first paragraph of complaint was insufficient. The action was commenced on March 25, 1908. The alleged abandonment occurred November 9, 1906. Two years must have elapsed from the time of the abandonment to the date of the commencement of the suit, to entitle plaintiff to a decree of divorce for that cause. §1067, subd. 3, Burns 1908, §1032 R. S. 1881; Cummins v. Cummins (1903), 30 Ind. App. 671.

2. We have examined the evidence on the charge of cruel and inhuman treatment, and we believe the decision of the court, denying appellant’s petition for a divorce, was not erroneous.

The record discloses no error. Judgment affirmed.