Hitchcox v. Hitchcox

Bfown, President. This was a bill for a divorce a mensa c.t thoro, and for alimony. The bill avers the marriage and the answer expressly states the marriage also. One witness in his deposition says: “ I am acquainted with Waldo P. Hitchcox, and also A. Y. Hitchcox, his wife. She came to my house, and he came there, and after abusing her, he took a fork up off the table and swore he intended to spill blood with it, following the complainant, she begging him not to hurt her. Last fall she came to my house with her daughter and said her husband had driven her off and intended to kill her.” In perfect accord with the fact of marriage as dated in the bill and answer and the deposition above of the fitness, Haney Hickman, is the general tenor of the statements of all the witnesses, and they are reconcilable upon no other hypothesis than that of the fact of marriage. That fact being unquestioned, was taken by all the witnesses, who doubtless knew the fact, as a concession.. For instance the witness Cyrus Wick said, “he was acquainted with the parties. On a certain occasion there was a considerable stir at their residence, near witness’ house. Complainant and defendant had separated, and complainant went to neighbor’s house. Saw defendant pass my house, and in my presence swear he intended to shoot complainant with a pistol he had in his hand, &e., because she was in company of a certain man; that she done it with intention to make him jealous.” Again, “ in the night complainant waked me up by screaming; said some one was trying to break in her house; she said it was the defendant.” The witness Thomas Leggett said, “that last fall, in a , belonging to the complainant, the complainant and defendant and witness were grinding cane and making molasses. The defendant [438] turned over the kettle and played thunder generally, and with a knife in his hand swore he would cut her (complainant’s) heart out, and she left and went to Mr. Hickman’s. About two years last fall, defendant knocked clown complainant, in their own house, by the hair of the head, and the defendant was taken away by the soldiers to their camp.” The witness Mrs. Alice Jack, said “she had been acquainted with complainant for eight years. About the middle of April, 1866, he (defendant) came to Campbell’s house about two o’clock at night, (witness was sleeping with complainant at the time); defendant broke open the bed room and said that everything she swore to in petition for a restraining order was true ; after that he returned and broke the window again; the first time he said if she would converse with him half an hour, and bring a light to the window, he would go away, and if she did not she would he sorry for it; she obliged his request, but in spite of all that, he returned again and broke the window.” Witness Henry Howard says : “I am acquainted with the reputation of complainant, and her character for virtue is good, and all her neighbors say she is virtuous. I know that complainant had to leave home on several occasions on account of ill-treatment I also understood that she w'as the main support of the family as a general thing.” The chastity, virtue and good character of complainant arc fully proved by the witnesses. This evidence show's the complainant lived with the defendant as his wife, but if she was not his wife, she could not have been a chaste and virtuous woman as proved by the witnesses, nor could she have acquired a good general character among her neighbors of both sexes. The expression, “ their residence” comports with the marriage, but not with the converse; “they separated” likewise agrees with the fact of their marriage, but not otherwise. Ilis denomination over her, and her submission and supplication and efforts to conciliate him are explicable only on the hypothesis of marriage in fact between a jealous, hectoring and [439] brutal husband, and a helpless, abandoned and submissive wife. These facts and circumstances force conviction on the mind of the truth of a marriage from which she seeks to escape, and he to hold her bound by it; a marriage which she declares and he admits expressly, and if proved by the certificate of marriage or by the eye witnesses of the marriage the conviction would not be more strong. But if any doubt could exist on the subject, the express admission in the answer of the marriage so charged, in a suit of this character, would be sufficient, notwithstanding the statute, chapter 109, section 9, code 1860, which was never intended to change the proof further than to require proof of the adultery or other aets'on which the divorce was sought; the evil which the statute was intended to guard against was collusion between the parties to escape from the bonds or obligations of the marriage, and to remove the temptation to become the witness of their own dishonor. The objection taken to the jurisdiction of the court to review by appeal the decree of the circuit court in a divorce case is without foundation on reason or authority. And the rule in Ohio has never been applied in Virginia. The statute puts the case on the same footing with other chancery suits. The reason assigned, of hot haste often of the parties to contract other marriages, tends strongly towards the evils the statute was intended to repress, by cutting off the facilities of success by their own statements and their own dishonor. The importance and sacredness of the mai--riage relation should rather require the right of review than in mere matters of dollars and cents. I think, therefore, that there was no error in the decree of divorce, nor in the provision made for the wife out of her own estate. It should, therefore, be affirmed, with costs and damages to the appellee. Maxwell, J. I am not able to concur in the conclusion that the allegation of marriage contained in the bill and admitted in the answer will dispense with the proof of marriage any more than if it were any other fact. The section [440] referred to requires divorce causes to be heard independently of the admissions of either party in the pleadings or otherwise. I think, however, the evidence sufficiently establishes a marriage for the purposes of this case. I concur, with this exception, in the opinion of Judge Brown. Decree affirmed.