The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-01-31
STATE OF NORTH DAKOTA
OCTOBER TERM
1909.

MAZE B. Rindlaub, plaintiff, vs. John
FL. Rindlaub, defendant.
1. The district judge retains full and
complete jurisdiction, after appeal, to
settle a statement of case to be used on
appeal or to do any other act in fur
therance of such appeal. Held accord
ingly that plaintiffs motion to strike
defendants statement from the record
for reasons assigned as a basis for
such motion. is without merit
@ The marriage relation will be dis
solved only where it's purpose has
been defeated by grave and serious mis-
conduct. Such misconduct to warrant
a judgment of divorce, must be estab-
lished by evidence of a clear and sat
isfactory character Public policy.
good morals and interest of society
require that the sacred marriage rela-
tion should be surrounded with every
safeguard and it's severance adjudged
only where the complaining party has
clearly and satisfactorily brought her
self or himself within the terms of the
statute.
5. BY section 404O b. c. 1905. "ex-
treme cruelty is designated as ground
for granting a divorce; and by sec
ton 4051 it is defined as the infliction
by one party to the marriage of grew
Gus bodily injury or grievous mental
suffering upon the other
Following the construction of this
statute adopted IN Mahnken V. Mahn-
ken, 9 n. d. 1888,
Held, that grievous mental suffering
may be SUFFICIENT to warrant divorce
under the statute although not produc-
tive ~
whether grievous mental suffering has
been inflicted by one party upon the
other is purely a question of fact to
be determined in the light of the par
ticular circumstances surrounding each
individual case.
T. Evidence examined and held not
of that clear and satisfactory character
TO warrant the granting to plaintiff of a
divorce for extreme cruelty.
5. Evidence relating to plaintiffs
other alleged ground for a divorce,
namely, habf-ual intemperance in the
use Of morphine to such a degree as to
disqualify defendent a great portion
of the time from properly attending to
business and which has reasonably in
fiicted upon plaintiff a course Of great
mental anguish examined and held not
established.
s. Defendants counter-claim alleging
facts constituting extreme cruelty on
plaintiffs part held. for reasons stated
in the opinion, not sufficiently estab-
lished by the evidence
7. Defendants counter-claim for
willful desertion by plaintiff, held fully
established.
(SyiIabus by the court.)
Appeal from district court, Cass
county, Templeton ].
Action for divorce in PLAINTIFFS favor
both parties appealed.
Judgment modified and lower court
directed to enter a Judgment in defend
ants favor granting him an absolute
divorce, assigning 70 him the home
stead during his life and awarding to
him the custody during a portion of
the time, OF Bruce and John, two of
the minor Issues of the marriage
Ball, Watson, Young & Lawrence, for
defendant
Barnett & Richardson. CPierce Butler
of .counser for plaintiff
Opinion Of the court by Fisk, j.,
Morgan c. j., and Ellsworth. J. con-
cur. Carmody. ]. and Crawford, dis
trict Judge. sitting in the place of
Spauldfng J., who was disqualified by
Tedspn u hdNinB DS6n OF cCunSei, dis
sent
The conclusions of the supreme court
upon the whole case are:
FIRST. That the judgment appealed
from, In SO far as it grants to plain
tiff a divorce be reversed, and that a |
gment be entered In defendants
or dissolving the marriage relation
ION the grounds alleged in his last
counter claim.
Second: That such judgment be |
modified so as to provide: That the
custody of the children, Bruce and
John shall be- until further order of
the court, awarded to defendant, SUBJ /.
1ect TO the following conditions: That
defendant shall not remove such child |
rem from this jurisdiction without per- |
mission of the court, first obtained, and |
that plaintiff shall be permitted during |
each afternoon between the hours of |
8 and O'clock to visit said children at /
defendants residence, when they are /
not at school, and that during the
months of June July and August, /
plaintiff may have the custody thereof
subject to defendants right to visit
them at least once each week for a
period of one hour, and, in additionI
thereto. to take them to his home each
Sunday afternoon between the hours of