The herald., 1897-02-14
THE SEABORG CASE
Reasons Why the Divorce Proceedings Are to
Be Reopencd


Be Reopencd
1t is simply wonderful how issues that
appear to the lay mind fairly clear may
be obscured when carried into court
of law. After being turned and twisted
and viewed from every side then the
clouds of obscurity begin to lift again
and in the issues in the case appear some
of the clearness that at first distinguish
| ed them
Yesterday two briefs were filed by the
| defendant in the sensational Seaborg
case; one on the motion to set aside the
| Judgment in divorce, and the other on
| demurrer in the suit to recover certain
property made over by plaintiff to his
wife,
The divorce proceedings were heard
by Judge Mckinley in chambers on De-
cember 18th, and a decree granted to the
husband, s. a. Seaborg, by default.
| Recently a motion was made by j. s.
Chapman, esq, counsel for Mrs. Eta
owen Seaborg, to set aside the judg-
| ment of the court and reopen the case.
In the brief filed yesterday counsel sets
forth that in any case default mad
vertently permitted by a party having
a substantial defense, presents a case
in which great latitude should be exer
cised in setting it aside.
The exercise of the mere discretion of
the court ought to tend in a reasonable
! degree to bring to a judgment on the
merits of the case. And when the facts
are such as to Lead the court to hesitate
upon a motion to open the default, it is
better, as a general rule, that the doubt
should be resolved in favor Of the appli
cation.
But in a divorce case" says counsel,
"the judgment should be set aside for
the asking. The public Is interested in
tho n, atter we'll the nartiaS No
affidavits of the merits are required on
motion of this character in a divorce
suit.
The right to allow alimony after the
decree and while the action Is still pend
ing, is undoubted. 1t is submitted that
the decree should be set aside, and the
defendant permitted to answer, and an
order made granting the defendant an
additional sum for counsel fees"
In the light of the above action In
seeking to open the divorce proceedings
the second brief, filed on demurrer, in
the suit to recover property made over
by the husband to the wife. is interest
ing.
1t is alleged that the complaint in this
suit was filed on December 7th, and on
the very day that the plaintiff obtained
his divorce. This, counsel contends, is
not accurate as the divorce is still pend
ing and the action is therefore proceed
ing upon a hypothesis that may never
be true. For all that can be known to- the
contrary the parties may live together
forever
The chief ground. therefore, upon
which the plaintiff seeks to recover
may not happen at all. Take away
this divorce" says counsel; "let the par
ties be still living together as husband
and wife, and we apprehend that there
con be no pretense of any right of action
i,, bo y,1o int of n nfhor u-Ordc
he could not get his wife and keep and
live with her, and recover back what he
had given her for her comfort and sup
port. If there is anywhere in the world
a case which holds that gift by a
husband to his wife can be annulled and
set aside because of the adultery of the
wife, we do not know where it Is. There
are thousand matrimonial wrongs be-
sides adultery, but we do not believe that
a case can be found where any of them
was ever held to be of themselves suffi-
cient ground to set aside a conveyance
from one party to the other.
In treating of contract, the nature
of it must be taken into question. What
may void one contract may not be suffi-
cient to void another and in the mar
riage contract the parties take each
other for better or worse, for richer or
poorer; consequently, mistake, wheth-
er resulting from accident or generally
rum lrduuuieHt prdctlceS IN respect TO
the character, fortune or health, does
not render the marriage void Though
divorce on the ground of adultery may
be had, yet nowhere will the marriage
be annulled for the previous unchastity
of either party
THE mere literary force with which
the averments of Mrs. Seaborg of prom
ises of fidelity and virtue, and her agree
ment to live with the plaintiff forever.
are made does not give to the conplaipt
any additional force at all When the
pleader say that they married, all these
things are added unto it."
On the showing made counsel contends
that the complaint does not state facts
sufficient to constitute a cause of ac-
tion, and. in addition, there is a mis-
joinder of actions