The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1921-06-10
court ORDER MODIFIED
OPINION WRITTEN IN THE
EBERHART CASE
Divided Custody of Child Is Not
Deemed Advisable BY JUS
tice HaIIam

Blue Earth county district court In
the case of Cora R. Eberhart vs..
Walter w. Eberhart handed down
today by the Minnesota state supreme
court. Judge Oscar Hallam of the
higher tribunal wrote the opinion.
The syllabus is as follows:
One. The evidence in this case Is suf-
ficient to sustain the courts finding for
defendant on the issue of alleged cruel
Two. In determining the question of
custody of a child, the best interest Of
the child is the. primary consideration.
circumstances of this Ease, should be
given into the custody of the plaintiff,
his mother. with liberal opportunity to
sociate with him.
Three. This court may make an al
in connection with an appeal in a d.
vorce case, and where an application is
made during the tendency of the ap-
peal it may be continued to be determin-
ed on decision of the case.
Modified. The opinion reads:
in August 1915. A SON was born to them
commenced this action for divorce al
leging cruel and inhuman treatment.
The trial court denied plaintiff divorce
and Secreed that during the sentin Inn1;s
have the custody of the child from No
vember 1stf until May LIST following each
year and that defendant should have his
custody from May ! to November 1.
One. The testimony was much iR con-
fict. The testimony on behalf of plain
tin was sufficient to make out a case.
denied by defendant. The evidence pre-
sented a plain issue of fact On this EVIL
dence the trial court found that there
threatened that the evidence was not
sufficiently strong to constitute proof of
Ill treatment Injurious to plaintiffs
health hea 1., nor such as to constitute cruel
the whole record plaintiff has failed to
establish by fair preponderance of the
evidence. the allegations of cruelty al
would be served by rehearsing the con-
ficting evidence Of the parties and their
witnesses. After a very careful review
is SUFFICIENT evidence to sustain the
finding of the court.
Counsel for defendant take exception
evidence is not sufficient to constitute
cruel and inhuman treatment within
the the meaning es ,; and intept Of the approved
to mean the jurisdiction" of the State
OF Minnesota and not as counsel under
stand it. of the judicial District in which
the case I was tired. ..ros owo,.,. -.
the portion of the decision relating to the
custody of the child. 1t was proper for
the court to determine the custody of
the child during such time as the es-
arrangement between the parties shall
continue. In determining this question
the best interest Of the child is the pri-
not free from difficulty AS We read
the record We are impressed with the
belief that both these parties are good
that they have not found the way Of
getting along well together. Each would
undoubtedly care for the child as well
permit. Neither one can give the CHI
enjoy.
We are of the opinion that the inter-
the divided custody ordered by the trial
court and that custody should be award
ed to one or the other parent, II he
ance Of both father and mother we are
OF the opinion that to boy FIVE years
old. the mothers care is most indispen-
ed most liberal opportunity Of seeing and
visiting his child and Of taking him out
at all reasonable times. The judgment
award the of fSe ehd to
plaintiff under such regulations for Wis
ting iii and association s.,1 on the part OF the
support. as. the trial court may order.
Three. Prior to the argument Of the
case in this court, plaintiff made appli-
cation for~an allowance of counsel fees
appeal The matter was continued to be
determined at the time of determination
of the appeal. This court has power to
wagner IS MINI. Sss; spratt VS. spratt.
14O Mimi. $40. If such an allowance IS
seasonably, applied for during the PEN
as a te sae on dee
sion of the case. Baier VS.. Baier 81
Mimi. 165; We are OF. the opinion that
the appeal was taken in good faith and
plaintiff as follows: For suit money.
the actual expenditures made, namely
S34S Is, and for attorneys fees. the sum
PENDANT, and the defendant is ordered1o
make payment accordingly.
Judgment modified.
Other Supreme Court Orders.
Carver County: o. d. Sell VS. Henry
Ienz, affirmed; Brown, commissioner
winona County: Joseph Kunda. ct al
Brown, commissioner and Judge.
VS. Anna Fitzpatrick, reversed; Holt,
Ramsey County: Anna Rittle VS. st.
Paul City Railway company. municipal
court Reversed; Holt. Judge.
eHsn 81 Rsyl anS saus ss
appellants from Judgment of dismissal:
Hennepin County: State Of Minnesota
VS.. William j. Aldo, order reversed: Dr.
bell, judge.
st. Louis County: Hans ]. Borsheim va
Great Northern Railway company, ct al.
affirmed; Dibell, judge.
Ramsey County: Paper, Calmenson and
Hennepin County: Alma q. Malrnquist,
ct al VS. Caroline Peterson, ct al, affirm
ed; Hallam, Judge.
VS. r. Sigelman, ct al, affirmed;
Dibell, judge.
Mcleod County: Farmers State Bank
of Garden City VS. Louisa B. Cooke, af-
firmed; Lees, commissioner.