Gardiner v. Gardiner

Headnote

Arrest.—Limited Divorce.—Dorm of Affidavit to obtain Arrest in Action for Limited Divorce ; and of Order.

In an action by a wife for a limited divorce, on account of cruel treatment, an order of arrest can be granted, under section 549a subd. 2, and section 550, subd. 4, of the Code of Civil Procedure.

Application for order of arrest.

This was an action for limited divorce by Anna. E. Gardiner, against John H. Gardiner.

The complaint alleged the marriage of the plaintiff to the defendant, and that both parties, were residents of this State. It then set forth in detail numerous acts of cruelty, and alleged:

" Seventh. That thé said defendant is engaged in a large, lucrative, and important business or occupation, and as this plaintiff is informed and believes, owns real estate to the amount of not less than $30,000 in value, and is possessed of personal estate to the amount of $40,000.”

The affidavit upon which the application for the order of arrest was made, was as follows, viz:

[Title of the cause. ]

Anna E. Gardiner, being duly sworn, deposes and. says : that she is the plaintiff herein, and is the wife of the said John H. Gardiner, the defendant herein ; that from the time of her marriage to the said John H. Gar-diner, on the 22nd day of May, 1866, up to and including the 20th day of September, 1877, she has and did reside with the said defendant, and was in all things a loving, dutiful, and obedient wife to Mm. That during the whole of said term of years, but more especially since about the beginning of the year 1873, defendant has been an habitual drunkard, and has abused, reviled and maltreated deponent to her great bodily harm, injury and distress. That on the 17th day of September, 1877, deponent commenced an action in this court against the said defendant for limited divorce, on the several grounds of habitual drunkenness, cruelty, and abuse. That on the 21st day of September, 1876, she caused defendant to be served with the summons and complaint herein, in which said complaint all of defendant’s acts of cruelty, so far as deponent could recollect them, are more fully set forth, and deponent makes the said complaint a part of her affidavit herein.

That since the service of the said summons and complaint, the defendant herein has not been seen either at his house, No. 129 McDougal street, or elsewhere at any of the places where it was his wont and habit to be and spend his time. That defendant herein has frequently declared that he had funds, moneys and property in England, beyond the jurisdiction of this court, and that in case deponent ever brought any action of any kind against Mm, he, the said defendant, would leave this country and abandon his wife and children, leaving them penniless and destitute.