Eggerth v. Eggerth

Strahak, J.

The plaintiff commenced this suit against the defendant for a divorce on the ground of cruelty. 'The particular acts constituting cruelty alleged in the complaint are sundry accusation of adultery against the plaintiff, which are alleged to have been false. The defendant answered the complaint, and denied the material allegations thereof; alleged condonation of the grievances mentioned. He also, by way of recriminatory charge, alleges that the plaintiff was guilty of the crime of adultery committed with one Kemper, and also with one "Wal-pers. The reply denies the affirmative matter in the answer. Tho district attorney under the statute intervened and filed an answer of similar import to the one filed by the defendant, and thereafter conducted the defense in behalf of the State.

The cause being at issue, was referred to R. J. Slater, to take the evidence and report his findings of fact and law therein. The referee’s findings fully sustain the allegations of the complaint; but the district attorney excepted to the same, and the court sustained the exceptions and dismissed the suit. From this decree this appeal is taken.

1. The fact that at various and sundry times the defendant made the accusations against the plaintiff alleged in the complaint, is admitted in tho evidence and clearly established by the plaintiff. This, according to the settled law of this court, entitles the plaintiff to a divorce, unless her right thereto is defeated by the affirmative matters pleaded in the answers.

2. The acts of condonation relied upon are sufficient to defeat the plaintiff’s right, unless the effect thereof be avoided by the *628 subsequent matter relied upon by the plaintiff. Condonation is a conditional forgiveness, the condition being that the offense shall not be repeated. If the charge or offense be repeated, then the condonation is to be deemed withdrawn or avoided, and the plaintiff may avail herself of the facts alleged to have been condoned, just as if no condonation had occurred. In this case the defendant did repeat the charges after the acts of condonation, and thus barred himself of the right to rely upon them in this suit.

3. When the district attorney intervenes in behalf of the State in a suit for a divorce, and files a pleading therein, such pleading is to be governed by the same rules, so far as applicable, by which the defendant’s pleading is governed. Therefore, to bar the plaintiff’s suit by affirmative matter under subdivision 4 of section 498, 'Hill’s Code, such answer must “ admit the charge.”

The special defenses provided for in this section are only available when the answer expressly admits the charges in the complaint (Rice v. Rice, 13 Or. 337 ), and cannot be joined in ah answer which denies all of such charges. For the purposes of the suit a demurrer admits all facts which are well pleaded in the pleading demurred t o, but in Rice v. Rice, supra, this court held that such admission must be by answer, and therefore a demurrer did not present the special defense in that case that the suit had not been commenced within one year after the right accrued. This view renders unavailable in this case the special matter relied upon by the defendant as well as the State.

The decree of the court below will therefore be reversed, and a decree entered here allowing, the plaintiff a divorce.