Pollock v. Pollock

Citations

• 9 S.D. 48
• 68 N.W. 176
• 1896 S.D. LEXIS 115

Syllabus

<p>1. At a time when only 90 days’ residence was required to enable a party to institute proceedings for a divorce, plaintiff’s uncontroverted testimony that he commenced to reside in Sioux Falls early in April, 1891; that it had been his home since he arrived here, and that he came for the purpose of becoming a resident — was sufficient to justify a finding that he was a resident in good faith at the time of commencing an action for divorce in the latter part of July, 1891.</p> <p>2. In such case the court had jurisdiction of the subject matter; and by the general appearance of defendant, by answering to the merits, and attending the trial and testifying, the court acquired jurisdiction of defendant’s person.</p> <p>3. Under Comp. Laws, Sec. 2562, Subd. 3, which provides that departure or absence from the family dwelling place, caused by cruelty or by threats of bodily harm, is not desertion by the absent party, but it is desertion by the other party. Whether there were such threats in a given case is a question of fact for the trial court, and its decision thereon will not be disturbed unless there is a clear preponderance of the evidence against the finding.</p> <p>4. Where there is a finding that, owing to the tender years of the children, the mother, defendant, is the proper custodian of them, and that she has no property, a decree that plaintiff pay to defendant $50 a month for their maintenance, should definitely fix the term for which said monthly payments should be made, and require plaintiff to give security for their prompt payment.</p> <p>5. Such modification of the judgment may be made by the supreme court without a reversal where all the facts necessary to enable it to do so are contained in the record on appeal.</p>