The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-02-01

statement of the case settled. or to
direct the district court to settle he
same, and that the supreme court
could no more gain Jurisdiction for
this purpose without such showing
than the district court could have
done"
Such motion is wholly devoid OF
merit. 1t is not contended. nor could
IL be successfully contended. in the
face OF the record, that ample cause
for an extension Of time was not
shown TO the trial Judge. In the
light of the affidavit Of Judge Young.
which was presented and brought into
the record and considered by the trial
Judge no doubt exists in our minds
of the Jurisdiction to settle such
statement. The case OF Mcdonald VS.
Beatty, Q NJ. d. 2ss. cited by re-
spondent, is not in point s
The argument that causing the
judgment roll proper to be. filed in this
court before the settlement of such
statement, evinces an, election by de-
PENDANT to submit his appeal on such
Judgment roll alone, is in view OF the
record, manifestIy erroneous, as lis
also the argument that this court
could not, in the absence of good cause
shown. remand the record to the low
or court as was done. The latter
contention is sufficiently answered by
saying that II was wholly unnecessary
that such record should have been
remanded. The trial Judge was
clearly in error In exacting this as a
condition to his proceeding to settle
such statement. The trial court, after
an appeal, retains Jurisdiction to per-
form any act in furtherance of the
appeal.
Flynn VS.. Cottle AZ Cal. 527: Colbert
VS.. Rankin, .72 Cal. 1877; State VS..
Board, So wis. 264: Hunnicutt VS..
Peyton, 102 u. 8. 354, 2 Cyc. s66 and
cases cited; Tiffany VS.. Henderson.
Ua.) 10 N. w. ss4; Gof VS.. Hawkeye.
etc, (Ia) Is N. w. 307; James VS..
Lepert, CNev) 2 Pac. 1853; Mercantile
Co. VS.. Pussy CMont.) "a Pac. 1s9:
McAdlep VS., The Latona, CWash.) 10
Pac. 1871; Coulter VS.. @. N. Ry. Co. S
N. D. 6Ss.
The, case of Moore VS.. Booker, 4 N.
d. 542, is not in point. That was q
case where the trial court, after an
appeal had been perfected and the
case argued and submitted in the SUI
preme court, undertook to alter the
record without first causing such rec
ord to be remanded for that purpose.
Doctors Appeal on the Merits.
This brings us to the merits on de-
PENDANTS appeal, in the consideration
of which. the questions presented will
be classified . into two general
branches: 3D..
First. Those, relating to the correct
ness of the lower courts findings and
conclusions as, to the plaintiffs second
cause of action, namely, extreme
cruelty, and,
Second. Those findings and con-
illusions relating to defendants coun-
ter-claims alleging. extreme cruelty
and 'wilful desertion on PLAINTIFFS part.
-..5 General Principles. ... 49, :
In the retrial OF these. issues we are
to be governed by certain general, but
well settled principles of law. > The
party having the burden of proof, upon
any issue must establish the truth of
the fact or facts alleged by clear and
satisfactory evidence. Before a court
will be justified In dissolvjng the
sacred marriage. relation and thus Wis
iting upon the innocent offspring the
undeserved punishment of being de-
prived of the happiness and comfort of
the home life, the party. seeking to
sever such relation should bring him
self or herself clearly within the pro-
visions Of the statute. AS we'll stated
by Mr.. Nelson, author of the article
on divorce I'm Am. g. Eng. Encyc of
Law. 72s, The state permits the dis
solution of marriage only where the
purpose OF the relation has been de-
feated by grave and serious miscon-
duct Such misconduct must, on an
application for divorce, be established
by competent evidence of full and
satisfactory character" Another text
writer expresses the same general
principle as follows: q" . Public
policy, good morals, and the interests
Of society require that the marriage
relation should be surrounded with
every safeguard and it's severance al
lowed only in the manner prescribed
and for the causes specified by law"
IA eye. SIS. This court In passing APP
on the question of the sufficiency Of
evidence to sustain a charge of ex-
trene cruelty alleged by the wife
against the husband as a ground for
divorce, took occasion, through
Bartholomew, C. j., to say: Again, in
1898, and following close upon one of
those episodes which IL is alleged pro-
duced not only mental suffering, but
bodily injury, we And plaintiff in St
Paul on means furnished by her hus-
band, and writing him letters which
might stand as models for happy
light hearted, and affectionate wives
to send to absent husbands. We find
no evidence in this case of the tnfiic-
tion of that grievous mental suffering
that the law requires to justify the
granting of a divorce. No doubt the
language used by defendant would
produce anger in a proud spirited wo-
man. But 1t is not for that cause that
the marriage contract can be annulled
That contract, while 1t imposes upon
the parties thereto the imperative
obligation never to unnecessarily anger
or wound each other, yet 1T also inn
poses the duty for forgiveness Of all
those weaknesses, imperfections, and
pecularities to which humanity is ever
prone. The sacred observance of that
contract is demanded by many public
interests. 1t is demanded by the In
terests OF the immediate parties there
to, and more than all it Is demanded
for the proper nuture, protection, and
training Of the offspring that results
from the marriage contract. The stat
utory grounds for divorce in this state
are broad, and courts may not multiply