Majority
p. 26[No. 5606.] E. A. CHRISTIE v. JOHN CHRISTIE.
Headnote
Divorce.—Insufficient evidence of desertion, cruelty, and neglect to provide. Unappealable Order.—An order overruling a motion for a nonsuit is not an appealable order.Appeal from the District Court of the Ninth Judicial District, Siskiyou County.
The action was for divorce, by the wife against the husband. The complaint assigned three grounds—willful desertion for four years; cruel and inhuman treatment, in the clandestine
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removal of the plaintiff’s children from plaintiff in Siskiyou County, of this State, to Jackson County, Oregon—thereby causing plaintiff great mental suffering; and willful neglect to provide for the support of the plaintiff. The answer denied all the allegations of the complaint.
The evidence adduced at the trial showed that the parties had lived separate for four years—the plaintiff at the home of her parents ; that the .defendant had at various intervals contributed one hundred and fifty-three dollars in money and other supplies from the store for the support of the plaintiff; that the plaintiff had never applied for anything further; that the defendant had removed the "children to the Ashland Academy, Oregon, in order to send them to school; that he had removed them on Saturday, and informed the plaintiff on the following Monday where they were; that the plaintiff was greatly afflicted in mind by the loss of the children, and succeeded in recovering two of them; and that the defendant was somewhat intemperate and addicted to gambling.
The defendant moved for a nonsuit, which was denied. He declined to offer any evidence, and a decree of divorce was rendered. The defendant appealed from the judgment and from the order overruling the motion for a nonsuit.
C. Edgerton and J. L. Murphy, for Appellant.
E. H. Autenrieth and J. Berry, for Respondent.
The complaint for a divorce proceeds upon three grounds: First, willful desertion; second, extreme cruelty; third, willful neglect. The allegations of the complaint are denied by the answer. The cause was tried before the Court. No 'evidence was offered by the defendant. The Court below found all the issues for the plaintiff.
We have carefully examined the evidence sent up in the record, and we think that it utterly fails to establish either of the grounds set forth in the complaint as grounds of divorce.
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The appeal from the order overruling the motion for a non-suit is dismissed, the judgment is reversed, and the cause remanded.