The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1911-06-09

IN the supreme court, state or NORTH
Dakota, October term. 1910.
Frank E. Luck. plaintiff and re-
spondent VS.. John A. Arends, defend
ant and appellant.
l. In an action for alienation of the
affections of the wife and for damages
resulting, decree of divorce obtained
by the wife from the plaintiff after
litigation on the merits, granted be-
cause of the husbands adjudged cruel
and inhuman treatment of the wife
during the period of time in issue I'M
der the pleadings in the alienation of
affections case the divorce action and
proceedings including the decree of di-
vorce is not res adjudicata on the
questions involved in the alienation of.
affections case against the third party,
and plaintiff Is not barred or stopped
thereby from recovery against the
third party for alternating the affec-
lions of the wife.
2. In such an action the decree of
divorce is Judgment in rem to the
extent only of judicially establishing
the prior existence of the marriage. its
dissolution and the status of the par
ties thereafter under the decree; such
Judgment is in all other respects a
Judgment in personam.s The legal
grounds upon which the decree was
granted and the pleadings in the d.
vorce action are not to be construed
as part Of the judgment in rem.
Therefore, the grounds upon which
such decree is granted. as welf as the
pleadings in the divorce action are
not admissible as part of a Judgment
in rem in the trial Of an issue of alien
alton of the wife's affections brought
by the husband against a stranger to
the divorce proceedings. The divorce
decree alone being a Judgment in rem
to the extent only as above defined is
admissible to establish the prior mar
riage, prove its dissolution and fix the
status of the parties in relation to the
admission of testimony and issues TO
be determined in the alienation of at
fections case on trial
8. In this class OF actions
the existance or nom existence
of the wife's affection being
in issue her declarations to third per-
sons not in the presence of her hus-
band as to her love of or hatred for
him, when made at a time when
there exists no motive to deceive and
before the commencement of the
alternating influences complained of,
are admissible; but any statements of
facts or reasons to justify or explain
her declarations of love or hatred are
inadmissable
4. The statute or foreign state
declaring forfeiture of a cause of
action for alienation Of a wife's af-
lection, when the husband has been by
such wife because of his fault d.
vorced, is given no extra territorial
force and such statute does not operate
to forfeit right of action existing
and sued upon here prior to the grant
ing Of the divorce in the state where
such statute exists
5. Privileged communications be-
tween husband and wife under sec
ton 1853 r. S. 1905, defined and ap-
piled in this case where the former
wife was offered as a witness in de-
fendent's behalf against her former
| husband to prove statements made
by the husband and wife and events
occurring during the period Of her mar
riage relation
6. A parent, brother or sister have
the right to counsel a married son,
daughter brother or sister in good
faith within reasonable limits. when
not maliciously done and when given
for the apparent best interests OF the
party advised without the relative 50
advising being liable to an action for
injury caused one party to the mar
rage resulting from the advice so
given, yet this privilege by reason OF
Relationship amounts to but the pre-
sumption that the party so advising
because Of natural love and affection
of near blood relatives toward one
another, would act only for the best
interests and with proper motives to-
ward the person advised Whether the
privilege thus accorded near blood
relatives In such matters extends to
La brother-in-law of the wife advised
In this case is question of fact for
the jury to determine under all the
circumstances under proper instruc-
tons from the court
7. A stranger In blood Inducing a
wife to leave her husband or taking
her away with or without her consent
and encouraging her to remain away
from him, does SO at his peril and the
burden Is on him to show good cause.
good faith and justification for such
acts, but the question as to whether
such person was justified In SO doing
lis 4 question for the Jury
s. The permitting OF redirect ex-
animation Immediately following
cross examination of the defendant un-
der the statute in plaintiffs main case
lis discretionary with the trial court
but the better practice il not TO allow