Brayton v. Brayton

Moore, J. The bill of complaint in this cause charges defendant, Edward Brayton, with drunkenness and extreme cruelty and prays for a divorce and the awarding to her of alimony. Defendant filed his answer on the 30th day of August, 1911, which was a general denial of the matters set forth in complainant’s bill. Complainant filed a replication to this answer on the 5th day of September, 1911. A hearing was had in open court upon the merits. Later the 'court gave to complainant a decree for divorce on the ground of extreme cruelty. The case is brought here by appeal. No question about the alimony is raised. Two questions are presented by the appellant in this court: First. It is contended that the bill of complaint does not sufficiently charge extreme cruelty as a cause for divorce. Second. It is contended that if the charge is sufficiently stated in the bill of complaint it is not made out by the testimony. As to the first contention, an attempt was made to charge extreme cruelty in the bill of complaint. The case was tried on the merits. The question is raised [456] in this court for the first time. This course does not have our approval. See Smith v. Blake, 96 Mich. 542 (55 N. W. 978); Richardson v. Richardson, 100 Mich. 364 (59 N. W. 178); Holcomb v. Holcomb, 100 Mich. 421 (59 N. W. 170); Tackaberry v. Tackaberry, 101 Mich. 102 (59 N. W. 400); Daly v. Wayne Circuit Judge, 102 Mich. 392 (60 N. W. 759). Second. Was the charge of extreme cruelty sustained by the testimony? It would profit no one to recite this testimony; some of it is too coarse to appear well in print. It is sufficient to say of it that it brings the case well within the decisions of this court. See Briggs v. Briggs, 20 Mich. 34; Goodman v. Goodman, 26 Mich. 417; Warner v. Warner, 54 Mich. 492 (20 N. W. 557); Berryman v. Berryman, 59 Mich. 605 (26 N. W. 789); Bailey v. Bailey, 121 Mich. 236 (80 N. W. 32); Utley v. Utley, 155 Mich. 258 (118 N. W. 932). The decree is affirmed, with costs. Steere, C. J., and McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.