Opinion
Appeal from the Sixth Judicial District.
The facts are stated in the opinion. The defendant made default. Upon the proof, the Court below found the fact of abandonment by the husband for the period of nine years, but held that this did not establish a willful desertion on his part without some proof of the circumstances and causes of the separation, and accordingly rendered judgment for defendant, from which plaintiff appeals.
COUNSEL:
J. B. Harmon, for Appellant.
The intent to desert may be inferred from a prolonged absence without cause. This is upon the principle that a man is presumed to intend the natural consequence of his acts. (Bishop on Mar. & Div. secs. 515-517, 550-1, 334-5; Greenl. on Ev. secs. 18-34.)
JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
COPE, Judge
We think the proofs in this case entitle the plaintiff to a divorce. The evidence shows that the parties were married in 1853, and separated soon after the marriage. The circumstances of the separation are not shown, but sufficient appears to make out a case of desertion. The parties lived together about three weeks, when the defendant left the country, abandoning the plaintiff, and failing to make provision for her support. He is still absent, and has never in any manner contributed to her maintenance, to obtain which she has been compelled to rely upon her own exertions. Desertion consists in the cessation of matrimonial cohabitation, and the intent to desert; and we think both ingredients are to be found in this case. The former is proved by positive testimony, and the latter appears inferentially from the fact of the abandonment without apparent cause. The plaintiff is not required to show negatively that no cause existed, for none appearing, the law will not presume one. The presumption is that there was none, and that the defendant intended the consequences resulting from his acts.
The judgment is reversed, and the cause remanded for a judgment as prayed for in the complaint.