Wagner v. Wagner

Headnote

Divorce—Petition; Amendment of—Offense; Description of—Extreme Cruelty—Pleading—Statute; Construction of.

1. The statute prescribes certain particular and specific offenses for which a divorce may be granted, and the petitioner is bound to set out in his petition the offense in the terms of the statute, “ Cruel, barbarous and inhuman treatment” is not a sufficient description or statement of the statutory offense of “ extreme cruelty.”

2. An amendment will not be allowed of a petition for divorce, because an affidavit cannot be amended. The petitioner must proceed anew.

The petition alleged:

“ That the said Frederick T. Wagner, in violation of his marriage vows, from the 20th day of March, A. D. 1898, to the present, hath been guilty of cruel, barbarous and inhuman treatment toward your petitioner; that to wit, on the 24th day of February, A. D. 1901, and at divers times thereafter, the said defendant hath assaulted, knocked down and beaten your petitioner without just cause; that to wit, on the day of A. D. 1901, within said time, the said Frederick T. Wagner made an affidavit before Lewis Sasse, a Justice of the Peace in and for Wilmington Hundred, New Castle County and State of Delaware, for a warrant

of arrest against your petitioner, under which said warrant your petitioner was arrested and taken before said Justice of the Peace, whereupon said warrant was dismissed, and at divers other times the said defendant, in conspiracy with others, has caused your petitioner to be arrested, fined and imprisoned; and at divers times within said time the said defendant has taunted your petitioner with having been in New Castle Couniy jail, and otherwise abused and maltreated your petitioner; that though the said defendant has a separate room and sleeps in the same house with your petitioner, he hath within said time refused to cohabit with your petitioner and so continues to refuse; that the said defendant takes all of his meals away from home, and though he owns considerable property and is a mechanic making high wages, he, the said defendant, neglects and refuses to furnish sufficient food for your petitioner and her family of five persons, so that your petitioner is compelled to work for others to procure money to provide a bare sustenance for her said family; that the said defendant makes no provision for furnishing necessary clothing for his said family,” etc.„

I ask that the petition be dismissed because it does not follow the terms of the statute (Rev. Code, 595-6, Secs. 1 and 2); the language of the statute being “ extreme cruelty,” while the allegation in the petition is “ cruel, barbarous and inhuman treatment.”

If the facts stated are sufficient to show a case of “ extreme cruelty ”—and I contend such a case is shown by the facts of this petition—it is sufficient. Instead of setting out mere conclusions of law, we have stated facts which establish those conclusions.

We have no authorities to present, but our contention is horn-book law.