Stieber v. Stieber

McNEILL, J. Henry .Stieber commenced this action in the district court of Lincoln county against Anna Stieber for a divorce, upon the ground of abandonment continued for more than one year, to wit, from the *206 10th day of April, 1916, to the 12th day of April, 1917, when the petition Was filed in this case. The defendant answered by way of general denial and cross-petition. On trial of the case to the district court, the court denied plaintiff a divorce and also denied the defendant a divorce. Prom said judgment the plaintiff has appealed. For reversal there are but two questions presented; Blrst, that the.finding that plaintiff was not entitled to a divorce was clearly against the weight of .the evidence. Second, that defendant in her cross-petition asked for a divorce upon grounds of extreme cruelty and plaintiff pleaded that said matter had been adjudicated in a former case where defendant was plaintiff and plaintiff was defendant and the court found that defendant was not entitled- to a divorce on tl'-e ground of extreme cruelty. The defendant has filed a motion to dismiss the appeal for the reason the case-made was signed and settled before the expiration of time to suggest amendments. The record disclosed that notice was served on the attorney for the defendant in error, who appeared at the time of settlement of case-made - and suggested no amendments thereto and made no objections to the signing and settlement of the case-made at thri time. The rule applicable to these facts is stated in 4 C. J. 362, as follows: “The appellee or defendant In error may, either expressly or by implication, waive notice of the settlement or defects therein and such waiver may be shown by evidence ou1 • side of the record. A voluntary appearance at the' settlement without objection operates as a waiver.” Such was the holding in the case of Russell v. Anthony, 21 Kan. 451. There are two lines of cases in this state which are apparently in conflict, to wit: The 'rule announced in the case of Southwestern Surety Ins. Co. v. Dietrich, 68 Oklahoma, 172 Pac. 51, which was followed and approved in the case of Miskovsky v. Vrba, 74 Oklahoma, 177 Pac. 614, and the rule announced in the cases of Sharp v. Sharp, 80 Okla. 17, 194 Pac. 100, and City of Enid v. McCann, 67 Oklahoma, 171 Pac. 452. These cases are apparently in conflict and the court in the case of Sharp v. Sharp, supra, and City of Enid v. McCann, supra, does not refer to the case of Southwestern Surety Ins. Co. v. Dietrich, supra. The cases dealt with different questions; one dealt with the proposition of what is a Waiver, the other does not deal with the question of waiver, but simply holds the case-made under certain circumstances is a nullity. ' Neither line of cases is in point: in- this case, and it is -unnecessary for us to state at this time which line of cases the court -would follow, or if said cases can be distinguished, bfit the universal rule appears to be, where the parties appear and Suggest no amendments and make no objections to the signing and settling of the case-made at said time, they thereoy waive any defect by reason of notice or the time of signing and settling case-made. The rule appears to be well settled in this and other jurisdictions that the nusnand has a right to choose the domicile, and if the wife refuses to accept said domicile, and without good cause refuses to live with the husband for more than one year and lives apart from him, it is abandonment and it constitutes abandonment under sub-division 2, see. 4962, Rev. Laws 1910. DeVry v. DeVry, 46 Okla. 254, 148 Pac. 840. The evidence in this case is undenied that the defendant left the home of the plaintiff on the 10th day of April, 1916, and refused to return and has lived separate and apart from him since said time. This was testified to by the plaintiff and several other witnesses and admitted by the defendant. This being true, plaintiff was entitled to a divorce unless defendant had good cause for abandonment and refusing to reside with pla intiff.. The evidence as to why the defendant left the plaintiff was the evidence of herself, father, and mother. There is no evidenci-óla t the plaintiff was ever guilty of extreme cruelty or anything else; in fact, there is apparently no difference between the parties as far as .they are concerned, except the imaginary idea of the- father and mother of the defendant as to why she should not live with the plaintiff. If there is any just cause or reason why the defendant should abandon the plaintiff and refuse to live with him, it was not testified to by the defendant or her father o-mother. The only thing testified to was that the plaintiff had told the father and mother, or at least the defendant’s mother, not to come upon the place any more. This was after they had a quarrel. The plaintiff’s evidence being urieOntradidted that the defendant had abandoned and refused to live with" plaintiff for' more than one year prior to the commencement of the suit, and there being no evidence to disclose that defendant had good cause to refuse to live with plaintiff, it was error to refuse a divorce. In a former action by defendant against plaintiff for a divorce, the court found the *207 ' defendant left 'plaintiff’s home of her own '.free will.( For the reasons stated, the judgment of the district court is reversed and remanded, with directions to grant the plaintiff a divorce and to make such further orders regarding the children and property as may be just and proper, according to the circumstances as they now exist. PITCHFORD, V. C. J., and MILLER, ELTING, and NICHOLSON, JJ., concur.