Wardlaw v. Wardlaw

1. When there was a motion for alimony, pending a bill for divorce, and the defendant in the motion, moved to continue, showing that a material witness was absent, without his consent, who lived in the county, and had been subpccned, etc., it was error iu the Court to refuse the continuance, on the ground that the granting of alimony was wholly in the discretion of the Court, and that there was no necessity for the presence of all the witnesses. ' 2. The Judges of the Superior Courts should use great caution in granting alimony, so as not to encourage applications for divorce on light grounds.

Divorce. Alimony. Decided by Judge Clark. Sumter Superior Court. April Term, 1869. In 1866 Wardlaw married a widow who had a minor son. In 1867 she sued him for a divorce, upon the ground of cruel treatment, by compelling her to work in inclement weather, and at labor too severe for one of her delicate constitution, and by not providing for her support. Upon the first application therefor, Judge "Vason, then presiding, “ ordered that the Court, at present, declines to grant to the plaintiff any alimony or counsel fee.” Afterwards, in October, 1867, he ordered Wardlaw to pay to her counsel $50 00, as alimony till January, 1868. In April, 1869, her counsel again moved for alimony and fees. Wardlaw’s counsel moved to continue the hearing of this motion, upon the ground of the absence of a witness, by whom he expected to show that while he and his wife lived together he provided well for her and his family, treated her with the utmost kindness, and her son, about six years old, with parental fondness; that this witness was present when Mrs. Wardlaw left her husband’s home, and that she had no cause to leave him, and that he, Wardlaw, was a poor man, worth not over $1,500 00 or $2,000 00, and was industrious. The Judge refused the continuance, saying that the divorce case not being on trial, there was no necessity for all the witnesses on each side, that the whole matter was in the discretion of the Court. Ward law’s counsel then insisted' that there was no good ground for divorce, and asked the Court to take up and try the divorce case. Very many causes were ahead of it, and the Court was pressed for time, and would not then take it up. Her counsel then showed that she was living with her brother, and was dependent on her friends for a support; that Wardlaw was worth about $2-,000 00, and that counsel fees in the case should be $100 00, and produced various affidavits, etc., showing how her husband treated her, and how she left, etc. The defendant replied with like testimony to show that he treated her well, and that her conduct was such as that she ought not to have alimony. After argument, the Court ordered Wardlaw to pay $150 00 from the 1st of April, 1867, to the 1st of April, 1868, and $150 00 from the 1st of April, 1868 to 1st of April, 1869, for alimony, and $100 00 for counsel fees, said amounts to be paid quarterly, i. e., one quarter then, another on the 1st July, 1869, another on the 1st October, 1869, and the last on the 1st of January, 1870 ; and further, that he pay her, or some one by her authorized to take it, $12 50, monthly, till further order, and that he pay the costs of this proceeding. And he ordered that, upon failure of Wardlaw so to pay either of said installments, the clerk should issue an attachment directing the sheriff, or his deputies, to imprison him till he complied. Wardlaw’s counsel say the Court erred, because there was no ground for divorce in said case, and in the refusal of said continuance, in the refusal to try the case and this application together, because this matter of alimony and fees was res adjudicata by Judge Vason’s order, because this allowance was too large, and because of his order for attachment to be issued by the Clerk.