Powell v. Powell

1. Divorce ; Insanity, After Marriage. Insanity, occurring after marriage, is not cause for divorce; and nothing which is a consequence of it can he. Neither is impotency caused by such insanity, nor extreme cruelty, while so insane, ground for divorce. , ' 2. - Impotency. The provision of the statute, that the district court may grant a divorce for impotency, is to be construed, that the impotence must have existed at the time of the marriage. S.--Insanity at Time of Marriage. A marriage .with an insane person, is absolutely void for want of sufficient mental capacity on the part of such insane person to consent to the'marriage. 4.--Sentence of Nullity. If a marriage is void by reason of the insanity of either of the contracting parties, while no judgment annuling such marriage as void ah initio is necessary to restore the parties to their original rights, yet a sentence of nullity in such a case is conducive to good order and decorum, and to the peace and conscience of the party seeking it. 5. - Relief, where Party is Incapable to Contract Marriage; Jurisdiction of Court. Section 648 of the civil code makes provision only for incapables to bring action to have a marriage to which such person is a party, declared void; but independent of this statute, and the sections of the law relating to divorce, the district court, on the application of either party to such a marriage, has jurisdiction to hear the cause, investigate the charge, and to afford the requisite relief.

Error from Neosho District Court. Action for divorce, commenced in October 1874. Defendant was then in the asylum for the insane. Service, copy of summons left with one T. F. T., guardian of defendant. Trial, as upon defendant’s default, at January Term 1875, T. ~W. C., judge pro tern., presiding, and decree of divorce entered. At the December Term 1875, the district court, P. B. presiding, the decree was vacated and set aside. From this order vacating' said decree, the plaintiff appeals. The allegations of the petition, and the facts, will appear in the opinion, infra. The writers of this brief first became connected with this oase after the filing of the motion to vacate the judgment, and hence are not responsible for the pleadings. Both the petition and amended petition are, perhaps, subject to severe criticism, for indefiniteness, uncertainty, and surplusage; but as neither these infirmities of the petitions, nor mere errors in the proceedings, are sufficient to justify the court in holding a.judgment void, (Freeman on Judgts., §§101-135,) and as the plaintiff acted under the advice of counsel, and in the utmost good faith, and as the sweeping away of the decree for divorce and alimony, upon the mere suggestion of the insufficiency of the petition, has left her in a most embarrassing position, we_ deem ourselves justified, and in duty required, to present the case to this court. The only grounds of the motion to vacate the judgment were, first, that the petition did not state facts sufficient to constitute a cause of action; second, that the court had no jurisdiction of the person or subject-matter. Upon the hearing no evidence of any kind was produced, and the court sustained the motion solely upon the ground of the insufficiency of the petition. We contend that the court got jurisdiction of the person by the service of the summons and appearance of the guardian. (Gen. Stat. 554, §18; p.557, § 36.) That an insane person may sue and bejsued in all ordinary actions, the same as a person not under disability, and for that purpose may appear by his committee or guardian, and be bound by judgments rendered, seems to be settled by all the authorities. (Freeman on Judgts., §152; 28 Wend. 85; 1 Hill, 97; 14 Barb. 488; 8 Barb. 552; 2 Bishop Mar. & Div., §308.) The action proceeds against, and the judgment is properly rendered against the lunatic, as in this case, and not against his guardian. (21 Ala. 797.) We cannot find that any discrimination is made against actions for divorce, or that in reason and public policy any such discrimination should be made. (6 How. Pr. 194; 13 Mass. 412; 7 Mass. 474.) This being settled, does the petition or amended petition state a cause of action? The pleadings on this motion will be judged by no stricter rules than those applicable upon a general demurrer to the same pleadings. We claim for the amended petition, that it sufficiently states a cause of action for extreme cruelty, (sub. 6, § 639, civil code,) and nothing more. The allegations concerning impotency should be treated as surplusage. But it will be claimed that, inasmuch as the petition alleges that defendant was insane before the marriage, and has continued to be so, that this must be construed to mean total, absolute, and habitual insanity; and that extreme cruelty cannot be predicated of an act done by a person in a state of insanity. We are not called upon to dispute this latter proposition, but we deny that any such construction is to be given to the petition. It is perhaps true, that the appointment of a guardian is conclusive proof of incapacity, and no subsequent act of the lunatic can form the basis of an action, civil or criminal;' but the act of extreme cruelty in this case was committed on the 1st day of June 1872, and the defendant was not taken into any kind of custody until the 11th of said month. A person may be sane upon one subject, and at the same time insane upon another, and in such cases would be liable, civilly or criminally, for his acts not influenced by his infirmity. “A lunatic is indeed properly one that hath lucid intervals; sometimes enjoying his senses, sometimes not.” Now in this case, according to the allegations of the petitions, while the defendant was insane at the time and before the marriage, yet the plaintiff did not know it until a long time afterward, and it would be. a very narrow and ungenerous construction of these allegations, to say that they exclude the idea of lucid intervals, and that under them proof could not be introduced to show that the defendant was sane and responsible for his acts on the 1st day of June. Of course, if such proof could have been introduced, the court will presume that it was, and that the decree was entered on sufficient evidence. But, we go. further: If the same rules applicable on the hearing of general demurrers govern this case, then the allegation that the defendant was guilty of extreme cruelty, though' perhaps the allegation of a conclusion of fact, is sufficient, (12 Kas. 124,) . and is equivalent to alleging that the defendant committed the acts under such circumstances, and in such a state of mind, as to constitute extreme cruelty, and excludes the idea, , that the defendant was influenced by insane impulses when he committed the acts. If the petition alleged in terms that the defendant on the first day of June, and at the time of committing the acts constituting extreme cruelty, was in a lucid interval, there would be no doubt of the, sufficiency of the petition ; and we think the petition does clearly, by implication, say this, and any other construction is forced and unreasonable. But, if this rigid construction is to prevail, then upon the same construction we insist, the defendant being insane before, at the time, and ever since the marriage, as alleged in both petitions, and the presumption and possibility of lucid intervals being excluded, the defendant must be held to have been incapable of contracting the marriage, or ratifying it afterward. If the defendant was non compos mentis, the contract could not have been mutual, there was no contract, and the marriage was void. 1 Pars. Contr. 310; 1 Foster, 52; 12 Mass. 363; 1 Bishop Mar. & Div., § 124. Insanity occurring after the marriage, is not, and ought not to be ground for divorce; and our div'orce statute does not in terms provide for declaring marriages entered into by persons non compos mentis, void. Yet such contracts, like all other contracts entered into by persons not possessed of a consenting mind, are void, and courts of equity will pronounce decrees of nullity, independent of the statute; and we submit that actions for this purpose are not technically actions for divorce, (2 Ire. Eq. 470; 3 id. 91,192,) and courts having full equity powers are not limited or restricted by the divorce statutes, but under their ordinary powers will interfere and pronounce sentences of nullity against contracts of marriage which are in law void ab initio. But the position of defendant’s counsel is, that the court should construe the petition to mean that the defendant has been totally insane since before the time of the marriage, and consequently that no act or omission of his during this interval can furnish the ground for divorce. That while the court should adopt this construction of the petition, it should also hold that the defendant at the time of the marriage had a consenting mind and was capable of contracting, and that he may discard his guardian and appear by counsel to resist any action to have the marriage annulled — indeed that the divorce statute is a restriction upon the power of the court to pronounce a sentence of nullity on any ground except the causes for divorce therein specified, and the single exception provided for in § 648 of the code. If this contention shall prevail, then there is no relief for the plaintiff, nor is there any means of procuring a judicial declaration of nullity in any case where the marriage is void in law for reasons existing at its inception, as in cases of marriage within the prohibited degrees of consanguinity, etc. Counsel for plaintiff has truly said, “the petition and amended petition in this case are perhaps subject to severe criticism, for indefiniteness, uncertainty, and surplusage.” It is doubtful if by strict search through the files of the various courts of this state a judgment was ever before rendered in favor of a party upon a document, called “petition,” that would begin to compare in worthlessness with the one in this case. Counsel also state that the district court “sustained the motion to vacate the judgment solely upon the ground of the insufficiency of the petition.” This is also correct. The district court in effect declared the petition insufficient, and hence a nullity. The plaintiff bases her claim for relief upon the grounds, 1st, insanity; 2d, cruelty; 3d, impotency. Section 639 of the code gives the causes upon which a divorce may be granted. Insanity, whether existing at the time of the marriage, or accruing subsequent thereto, are not in terms by the code made grounds for a divorce. The marriage relation or contract can only be dissolved on some one of the grounds named in the statute, and insanity is not one of these. But plaintiff’s counsel think the allegation of “ extreme cruelty,” is good on general principles. The “extreme cruelty” upon which plaintiff relies occurred a few days only before defendant was taken to the insane asylum, while the defendant was insane and mentally incapable of knowing what he did. It is the accepted doctrine, that adultery committed while the party is insane, is not a ground of divorce; (Bishop on Marriage and Divorce, §612.) If this be true, why should consequences flow from acts of cruelty, which do not from the adultery of the party? There is a clear and well-defined distinction between cruelty committed while sane; and while insane. The former has the consent of the mind, the party knows the consequences, and accepts the possibility and contingency of the act. In the latter case, these are wanting. There is no evidence or allegation that the “lucid interval” was upon the mind of this unfortunate defendant at the time the “extreme cruelty” is alleged to have been committed. But on the contrary, plaintiff’s petition says “ the defendant was, at the time of their marriage, and has continued to be, and still remains insane, and that his insanity has continually grown worse.” Hence the two or three pages of plaintiff’s brief about “lucid intervals,” are simply outside the case. “ Insanity of the wife, is not cause for divorce, although such insanity may be permanent. Neither is impotency, caused by such insanity; nor cruel and inhuman treatment, while so insane, any ground for divorce.” Wertz v. Wertz, supreme court of Iowa, June term 1876, reported in 10 Western Jurist, 468.