From: Le Sueur County District Court, Civil Case File 1096 The original documents are stored by the Minnesota Historical Society State of Minnesota Dist. Court 8th Dist. County of Le Sueur Harriet Conroy vs. Henry Conroy This is an application of plaintiff made herein, for the custody of the child of the parties hereto. Defendant (by counsel) appears specifically, and objects to the proceedings, for the reason, as he claims that this court has not acquired jurisdiction of the defendant, or subject matter; and therefore can not hear and determine the right of either party to the custody of said child. It appears that the summons and complaint in this action (which is for a divorce, and seeks the custody of said child) was "served" by delivering a copy thereof to the defendant personally at the town of Dewitt, in the County of Clinton and State of Iowa, on the 5th day of July A.D. 1878; and that the notice of this motion was also served in the same manner; and at the same time and place. It is made to appear, in support of this objection, that said defendant and said child there, and since have resided and are domiciled in said state of Iowa. An order of this court was made on the day of July A.D. 1878, fixing the time, within which defendant should answer to be within thirty days after personal service of that order upon him. Defendant has not yet appeared, in this action, except thus specially on this motion. The question present is, whether from the foregoing (which are all the proceedings had in this action) this court has acquired jurisdiction to pass upon, and determine, who of the parties is entitled to the custody of the child. The service of the summons in this case, can not be considered other as constructive. While, it is true, it was delivered to the defendant in person, that act can not be considered as the service of a process of this court; for the very good reason that no such comity exists, between the states, as would empower the legislature to authorize or declare it to be such a "service" as would give this court full jurisdiction over the person of the defendant, as well as the subject matter of the action. "No sovereignity can extend its process beyond its own territorial limits, to subject either person or property to its judicial decisions. Every exertion of authority of this sort, beyond this limit, is a mere nullity." - Story's Conflict of Laws, Sec. 539. By no means, can a citizen of one state be compelled to go into another state to litigate a civil action, by means of process served in his own state. -- Freeman on Judgments 564, and, authorities cited. All actions against non-residents, which are based upon constructive service of the summons, are in their nature, proceedings in rem; and actions of divorce are no exception. The principles upon which decrees of divorce, procured upon constructive service of the summons, are sustained, is that the subject matter of the action (the marriage contract) is within the jurisdiction of the court; and that in so far as the decree fixes the status of the parties, by disolving the marriage relation, it is a decree in rem. There its validity and force will terminate. When it goes further, and assumes to dispose of other matters such as property, or the custody of children, the decree is, to that extent, in personam; and if granted in an action against a non-resident, commenced by constructive service, and in which he failed to appear and submit himself to the jurisdiction, would be absolutely void, as to so much of the subject matter adjucated upon, as was not actually within the jurisdiction of the court. Cooley's Constitutional Limitations 404, 405. It follows then, that, in this case, the court has not acquired jurisdiction over the person of the defendant, and that this action is but a proceeding in rem. In it, this court has no authority to render a judgment for alimony, or costs, or to make any disposition of the child, that would have extra-territorial force, or be binding upon defendant personally. -- Freeman on Judgments 586; Jackson vs. Jackson, I Johue 424; Grave vs. Meginnis, I G & G. 468; Townsend vs. Griffen, 4 Harr. 440; Maguire vs. Maguire, 7 Dama, 181; Cooley's Cont. Lim. 405-6 The service of the summons upon defendant outside the limits of the State is of no force or effect other than to notify him, that, upon application of the plaintiff, this court proposes to take cognizance, and adjucate upon the subject matter of the action, which is within its jurisdication; so that if he desires to oppose the granting of a decree, changing the status of the parties to the marriage contract, he can do so -- the spirit of the law being that all the facts, pro and con, shall be made to appear, on the hearing of the application for divorce. But this notice must not be confounded with, or considered as in any manner a process, by which the court can acquire jurisdiction over the person of the defendant, without his consent. Such being the case, the delivery of a copy of the summons and complaint herein, to the defendant, in the State of Iowa, did not give any more force of fact, or validty to the like delivery to him there, of a copy of the notice of this motion, than if the summons and complaint had not been there delivered to him. Then what jurisdiction has this court acquired, over the person of defendant, or subject matter of this motion, by the delivery to the defendant of a copy of this notice in the State of Iowa? Clearly, none whatever. The father is ipso facto, the guardian of his minor children, and entitled to their custody (Sec 5 Chapter 59 Gen Stat. - Bis. Stat. p. 704; Sec. 57; Townsend vs. Kendall, 4 Minn. 413 - p. 417 of opinions) and, as between husband and wife, the custody of the children generally belongs to the husband (L. Story's Sq. 1341; North in re, 11 Jurist, 7; Commonwealth vs. Briggs, 16 Pick. 203). The defendant must therefore be presumed to be lawfully in posession of the child - the custody of which, being a natural and legal right that he can not be deprived of, except by a court of Equity, in lawful exercise of its powers. L Story Equity, 1841. The service of this notice of motion, was wholly unauthorized, and is absolutely void. There is certainly no statute law authorizing a party to thus notify a defendant residing outside of this State, and bring him into this court. If, in the first instance it had been made to appear that the child was within the jurisdiction of this court, it might have assumed jurisdiction, and provided, by order, for notice to the defendant, to appear and show cause, if any he had, why the custody of the child should not be assigned to the plaintiff; but nothing of the kind was done. This plaintiff evidently proceeded upon the erroneous theory that by delivery of the summons and complaint, as aforesaid, this court had acquired jurisdiction over the defendant, for all purposes, and that a notice of motion could be served upon him there, and in the same manner and with the like effect, as if he were a resident of the State. To hold that, by this notice, this court acquired jurisdiction to hear and decide this motion, would be to give to such a notice more force and effect than the courts give to a summons so served. It not only was made to appear but was conceded on this argument, that both the defendant, and the child in controversy, were beyond the jurisdiction of this court. The absurdity of making an order, or rendering a judgement, that could not be enforced, is apparent, and fully illustrates the correctness of the position here taken. Until such time as the defendant is found within the jurisdiction of the court, and process served upon him therein, or he voluntarily appears and submits himself to its jurisdiction, or the child is brought here, this court has no authority to adjucate, or dispose of, the custody of the child. The plaintiff is not without a remedy. the courts of Iowa are open to her, and their equity powers can be invoked, (by petition for a writ of habeas corpus) to award her the custody of the child. There the matter can be heard and determined, upon its mertis, by a court whose jurisdiction is unquestioned. The objection must be sustained. Ordered that this motion be and the same is hereby dimissed. July 27th 1878. J.L. MaxDonald Judge 8th Dist From: Le Sueur County District Court, Civil Case File 1096 State of Minnesota County of Le Sueur District Court Harriet Conroy vs. Henry Conroy State of Minnesota ? ? ? ? ? ? being duly sworn ? that he is the attorney for Henry Conroy the defendant in the above ? admits that on the day of June 1878 said defendant Henry Conroy removed from the County of Le Sueur in the state of Minnesota his ? domicle. ? in the county of ? in the State of Iowa and ? his ? ? and residence there, which place was since has been and now is his domicile and residence. That Edward H. Conroy the child of these parties is residing with said Henry Conroy ? ? ? and has been for the time said Henry Conroy has ? ? ? ? and now ? so ? ? ? ? ? Before me the 22 day of ? 1878 M Thomas Notary Public From: Le Sueur County District Court, Civil Case File 1096 State of Minnesota ? ? ? ? ? ? ? ? says that he is one of the attorneys for the defendant. ? ? ? ? ? ? ? is ? ? ? ? ? ? his own knowledge information and belief and ? ? ? ? ? ? made by the plaintiff ? ? ? he is absent from ? where ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? day of ? 1878 ? ? Notary Public From: Le Sueur County District Court, Civil Case File 1096 State of Minnesota District Court/County of Le Sueur Harriet Conroy ? Henry Conroy County of Le Sueur Francis Cadwell being first duly ? ? ? ? is acquainted with the defendant in the above entitled action; ? on the 17th day of June, 1878 the said defendant informed this ? that he intended to leave Minnesota and go to the State of Iowa to live: that he had obtained employment in that State and proposed to make it his permanent residence. And he did again on the 20 day of June 1878. Again so ? to this ? and that he was going to leave on that day. Francis Cadwell ? and sworn to before me this 22nd day of July 1898 M. R. Everett Notary Public Minn. From: Le Sueur County District Court, Civil Case File 1096 State of Minnesota County of Le Sueur District Court Harriet Conroy Vs. Henry Conroy The defendant answers the complaints of the plaintiff and ? ? ? ? The defendant admits that these parties were married as ? in the complaint and that they lived and cohabitated ? as therein alleged. ? the only issue of said marriage has been one child, Edward H. Conroy about three years and seven months old. The defendant admits that the plaintiff ever since said marriage of the parties has been and now is a resident of the county of Le Sueur and state of Minnesota. The defendant further answering augus that he now is and ever since the twentieth day of June 1878 has been a resident of and domiciled at ? in the county of ? and State of Iowa. And for such time said child has been and now is domiciled ? ? in said county and State and under the care and control of the defendant. The defendant further answering admits that these parties are as ? married without the consent of the parents of the plaintiff so far as the defendant knows . ? the defendant alleges that he did not induce the plaintiff to marry him against her will and did not beguile her into ? marriage by ? ? ? promises, and that the plaintiff was even as willing and anxious to marry the defendant as he was to marry her, and no ? said marriage was the result of mutual love and admiration. The defendant further answering denies each and every allegation of cruel and inhuman treatment as ? ? ? ? ? the plaintiff. ? ? ? ? and each and every allegation of misconduct on his part towards the plaintiff ? ? complaints except as hereinafter stated. The defendant alleges that in or about the month of ? 1876, the plaintiff in a moment of ? and passion upbraided him severly and made use of some profane language towards him without just cause ? ? ? and provoked thereby he did with his open hand slap the plaintiff in the face but with little ? or force. The defendant admits that in about the month of August 1876 he left this State and ? to the State of ? and did ? ? ? 1877. ? the defendant alleges that his so ? and so there remained for the purpose of ? employment while he did ? ? his return as aforsaid and that he ? ? and ? and ? his ?, ? ? and state of Iowa, ? ? ? consent and advice of the plaintiff ? ? ? ? arrangement with her and ? ? ? ? ? ? ? and live with him in said State as ? as he should ? ?. ? as soon as he got employment in said State which ? ? after his arrival there he notified the plaintiff of such fact and requested her to come to him and sent her railroad passes ? ? she ? ? ? ? his home in the State ? ? ? ? ? ? ?, and ? she ? ? ? ? ? ? ?. ? ? the plaintiff ? promised the defendant to join him and live with him ? State of Iowa - ? ? ? ? and ? ? ? ? to the plaintiff and his ? child ? ? her, returned to the State of Minnesota and to Le Sueur County ? where he resided and was profitably employed ? ? ? fifteenth day of ? 1878 when he again left the State for the said state of Iowa and the ? ? where he now resides and is steadily employed at $60 per month as station ? ? ? ? ?, ? the ? and ? ? Railway company. The defendant admits that for some time ? ? ? ? marriage ? plaintiff and ? he as ? ? to the State of Iowas he used intoxicating liquor as ? and ocassionally excess, but ? he as aforsaid remained in the State of Iowa he did not use intoxicating liquor ?. ? the plaintiff was fully aware of the habit of the defendant when they were as aforsaid married. The defendant alleges ? he has not drunk a ? of intoxicating liquor since the month of August 1877 of any kind and is ? ? ? to ? a perfectly temperate and sober life. ? the month of July and August 1876 and after he so as aforsaid slapped the plaintiff in the face he sorry for all he had ever done in a rude and ? manner to the plaintiff and for all ? towards her of unkind or ? ?, begged her forgiveness - and she forgave him and they ? ? ? ? ? in ? and in said ? cohabited ? ? ? Le Sueur in this state and all ? on the ? of the ? ? ? ? plaintiff ? ? marriage relation ? ? ? ? fully forgiven and ?. ? these parties commenced living together again in July 1877 he ? ? ? ? ? ? ? plaintiff, ? ? did drink some intoxicating liquor and was considerably under its influence two or three times but the defendant alleges that he so ? in the use of intoxicating liquor because he ? ? and ? in his conduct and unsettled in his ? by the conduct of the plaintiffs mother towards him which was unkind ? and insulting and ? the ? careless and negligent ? of the plaintiff in ? household affairs and otherwise - in that this ? ? ? ? ? ? ? ? ? and to the ? where the plaintiff was perfectly able ? ?. The defendant ? alleges that the mother of the plaintiff never ? or was reconciled to him and never after said marriage ? him kindly and ?, but ever ?, insulted, and railed at him and about him and ever interfered between the plaintiff and defendant and used her influence upon the plaintiff to ? her from living with the defendant. The defendant admits that he told the plaintiff that she ? ? ? ? on her ? ? and ? ? ? ? assisted her - and he alleges that he so told her because she so told him and informed him of the fact, ? while ? ? ? ? ? defendant alleges ? fact ? ? ? and belief that the plaintiff ? and ? ? ? ? in the year 1876 and one in the year 1877 and did ? ? assisted her as said ? and as a physician advised her in ? ?. The defendant admits that he took said child into his possession ? ? the ? ? in the complaint and the defendant alleges ? ? ? ? ? and for several days ? ? the plaintiff ? ? to go to Iowa ? ? the defendant should go and ? ? child and live with him as his wife ? an ? before he took said child the plaintiff informed him that should would not go and live with him ? ? ? ? her mother Mrs. Cynthia Stewart ? Le Seuer ? ? ? that the plaintiff ? said child ? ? ? and having made full arrangements to ? ? ? ? aforsaid ? ? ? ? for said child, and ? ? ? ? when he could see and care for it ? ? ? ? ? ? ? ? ? ? ? the child is ? and ? cared for and when the defendant is amply able to support it and its mother ? it. The defendant alleges ? he now earns $60 ? ? and ? ? ? ? which ? would comfortably ? these parties and said child and ? the plaintiff ? ? ? ? and ? ? ? ? ? ?. The defendant ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? the result of ? ? and exposure of ? ? the plaintiff, who ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? said child ? ? ? ? ? ? ? of its health. The defendant admits that he ? ? ? ? plaintiff ? ? ? ? ? he took said child ? ? ?, and he alleges that he had a ? desire that she should live with him so that they could ? ? ? of said child that this defendant has a strong affection for the plaintiff and now is and ever has been ? ? ? ? ? in her, and ? ? the plaintiff entertains an affection for him and would live with her but for the influence of her said mother ? against it. The defendant alleges that ? since any of the acts alleged in the complaint ? the defendant the plaintiff fully forgave him for any offense as ? ? between her and fully condoned it. ? ? ? ? ? him as his wife when he should become able to support her in style. ? ? ? ? parties were ? the ? of the plaintiff and with whom she ? ? ? ? ? ? ? ? and the plaintiff had no property of her own and was ? ? and live ? ? ? frugally. ? soon after said marriage the mother of the plaintiff became suddenly rich by the death of said father and by reason of a heavy insurance ? his life, and lived ? ? ? ? has exerted a great influence over said plaintiff so the plaintiff herself has been more ? ? ? ? ? ? the defendant unless he could ? and ? ? in fine style and support her sumptously. ? the plaintiff was ? ? ? ? reason of any ? of his toward her, ? ? ? ? ? that he could ? support her in ? ? ? ? ? ? her ? ?. The defendant admits that the ? ? ? ? of the ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?. The defendant denies each and every allegation and each and every ? ? ? contained in the complaint ? ? ? ? ? expressly. From: Le Sueur County District Court, Civil Case File 1096 STATE OF MINNESOTA DISTRICT COURT COUNTY OF LE SUEUR EIGHTH JUDICIAL DISTRICT The State of Minnesota, To John Parker, Mrs. Eliza J. Porter, ? D. Swain Greeting: You are hereby commanded that, laying aside all and singular your business and excuses, you be and appear before the Judge of District Court, for the Eighth Judicial District, and county of Le Sueur, at the Court House of said county, on the 3rd day of Sept 1878 at 11 o'clock in the forenoon, then and there to give evidence in a cause to be tried between Harriet Conroy Plaintiff, and Henry Conroy Defendant, on the part of the Plaintiff Hereof fail not, on pain of the penalty that will fall thereon. WITNESS, the Hon. JOHN L MACDONALD, Judge of the District Court aforesaid, at Le Sueur Center, this 21st day of Aug. in the year 1878 Frank M. Kolare Clerk of District Court by John ? From: Le Sueur County District Court, Civil Case File 1096 State of Minnesota County of Le Sueur District Court Harriet Conroy, Peff. vs. Henry Conroy, Deft. Take notice that the issues of fact in the above entitled action will be brought on for trial at the next general ? of said court to be held at Le Sueur Center in said county on the 2nd day of September AD 1878. At the hour of ten (10) o'clock on that day or as soon thereafter as counsel can be heard. Baugs ? Peff Attys Le Sueur Minn To Cadwell Everett & M. J. Sevnance Defts Attys From: Le Sueur County District Court, Civil Case File 1096 STATE OF MINNESOTA } SS. DISTRICT County of Le Sueur } Eighth Judicial District Harriet Conroy Peff vs. Henry Conroy Deff The State of Minnesota to the above named Defendant: You Henry Conroy are hereby summoned and required to answer the Complaint of the Plaintiff in the above entitled action, a copy of which is herewith served upon you and to serve a copy of your answer to the said Complaint on the subscribers at their office in Le Sueur in the county of Le Sueur in said State, within thirty (30) days after the service of this summons on you, exclusive of the day of such service; and if you fail to answer the said Complaint within the time aforesaid, the Plaintiff in this action will apply to the court for the relief demanded therein together with the costs and disbursements of this action. Baugs and Ewery Plaintiff's Attorneys Residing at Le Sueur Minn Dated June 29th 1878 H. J. Peek and S. M. Brown - of Counsel From: Le Sueur County District Court, Civil Case File 1096 State of Minnesota } ss District Court County of Le Sueur } 8th Judicial District Harriet Conroy Peff vs. Henry Conroy Deft For complaint in this action Plaintiff alleges: That the age of this Plaintiff is 20 years and the age of this Defendant is 26 years. That Plaintiff was duly married to Defendant at the city of St. Peter, County of Nicollet State of Minnesota on the 10th day of September AD 1873 and that Peff has ever since been and now is a resident and inhabitant of the County of Le Sueur and State of Minnesota. That Plaintiff from and after said marriage continued to live and cohabit with defendant as his wife with the exception of about ten (10) months as hereinafter stated - until July 4th A.D. 1877, when she finally left him as hereinafter set forth. That the issue of said marriage has been one child to-wit: Edward H. Conroy born November 17th AD 1874 and now aged Three (3) years and Seven (7) months: and that during all of the time aforesaid she conducted herself with propriety, managed the household affairs of her said husband with prudence and economy, and at all times treated her said husband with kindness and forbearance. That from this Plaintiff's infancy to the time of her said marriage, she had been accustomed to and did receive only the kindest of care and treatment and is and ever had been of a very sensitive disposition, easily hurt and wounded in her feelings by even slight unkindness or neglect and totally unused to hardship or unkindness in the least degree. All of which said Defendant, at the time of said marriage well knew. That she was induced to and did marry said Defendant against the wishes of her parents on account of the promises and vows of love and kind and tender treatment by said Defendant to her. But that said Defendant disregarding said knowledge and said promises and the solemnity of his marriage vow and his obligation to treat this Plaintiff - his said wife - with kindness and affection about four weeks after their said marriage commenced a course of harsh, unkind, and tyrannical treatment of and conduct towards her which continued with very slight intermissions until she finally left him in July 1877 as aforesaid. That Defendant was prior to and at the time of said marriage and ever since has been up to within eight (8) months last past addicted to the frequent and excessive use of intoxicating liquors as a beverage and in his fits of intoxication has very frequently struck and beat said Plaintiff and addressed to her the most insulting vile and opprobrious epithets and language. That Defendant is a man of violent passions and ungovernable temper. That about December 1st 1878, said Defendant without cause or provocation violently siezed said Plaintiff by the throat - while in bed - and with great force choked her and there and then struck her a violent blow on the left shoulder whereby Plaintiff was sick and weak for a long time. That shortly after their said marriage Defendant, without cause or provocation and cruelly, arbitraily, and tyrannically ordered Plaintiff to in the future abstain from visiting her parents - then resident in Le Sueur in said Le Sueur County but a few ? from where Plaintiff then resided and from going to their house and from going down the side of the street on which said house was situated - on the side thereof toward said house. That shortly thereafter in the month of June A.D. 1874 Plaintiff having accidentally and thoughtlessly walked down said street on the side thereof toward said house and passed the same Defendant met her and there and then in the presence of another lady grossly insulted her and angrily cursed, upbraided and abused her for having disobeyed his order as aforesaid. That during the month of July A.D. 1874 at some date to Plaintiff now unknown said Defendant while somewhat intoxicated without cause or provocation struck Plaintiff in the face with his clenched hand thereby causing Plaintiff's left eye and her face to be swollen and black and inflamed thereby greatly injuring Plaintiff and causing her to be sick and weak for a long time. That during the summer and fall of 1874 Plaintiff being then pregnant with child said Defendant was constantly and unnecessarily absent from home nights until three (3) or four (4) o'clock in the morning leaving Plaintiff all alone and in fear and frequently in great physical pain: and that during said period he frequently returned home at very late hours of the night in a condition of bestial intoxication and frequently struck and beat said Plaintiff and on one occasion during said period he brutally kicked her and thereby greatly hurt and injured and frightened her. That in the month of November A.D. 1874 after the birth of their said child and while Plaintiff was sick in childbed, Defendant came into her room and finding the room somewhat untidy in appearance commenced to violently abuse and curse Plaintiff and thereby greatly frightened and hurt Plff. in her mind and feelings and greatly retarded her recovery from said sickness. That Defendant constantly and with only very slight intermissions continued this course of conduct towards Plaintiff frequently striking and beating her up to July A.D. 1876. That during the month of July A.D. 1876 at some day to Plaintiff now unknown, Defendant without cause ar provocation violently struck said Plaintiff with his clenched hand thereby knocking her to the floor and greatly injuring her and that Plaintiff thereupon left him and with their said child went to the house of her mother with whom she remained till May 1877. That in August of 1876 said Defendant left this State and went to the State of Iowa where he constantly resided till May 1877. That during all of said time this Plaintiff remained with her friends entirely dependant upon their charity for her support and that of their said child. That Defendant during all of said period refused and neglected to provide in any manner for their support and maintenance although he received good wages - which he squandered in drink. That after the return of said Defendant to Le Sueur in May A.D. 1877 he induced Plaintiff by the most repeated and solemn promises and vows of reform and of tenderness and kind treatment to her to return to and live with him. That relying on said promises and vows, Plaintiff did then and there so return to and live with defendant. But that said Defendant disregarding said promises and vows was continually after her said return to him - cruel and abusive to her and frequently came home under the influence of intoxicating liquor and with very slight intermissions constantly applied to Plaintiff the most opprobrious, vile, profane and abusive epithets. And that on the 4th day of June A.D. 1877, Defendant without cause or provocation addressed to this Plaintiff and concerning her the following false, vile, profane, slanderous and abusive language to wit: "You are a God-damned hussy" and "You are a God-damned strumpet" and other similar false and abusive language. That on the 4th day of July A.D. 1877, Defendant came home in a state of bestial intoxication and being in fear, Plaintiff thereupon left him and went with their said child to her friends since which time she has not dared to return to him nor remain within reach of his violence. That said Defendant has since said time made frequent attempts to induce and coerce her by persuasion and promises to return to and live with him, but that knowing his former conduct and distrusting his said promises, she has ever refused so to do. That on or about May 19th 1878 said Defendant attempted by force and violence to sieze and remove the said child of their marriage said Edward H. Conroy from the care and custody of this Plaintiff and this with intent thereby to compel Plaintiff to return to and live with him. That having failed in said attempt said Defendant did on the 16th day of June 1878 again attempt to coerce this Plaintiff to return to and live with him by saying to Plaintiff these vile and slanderous words following to wit: "If you dont come and live with me I'll have you and Swaine arrested for abortion by God", and there and then falsely and slanderously and maliciously accused said Plaintiff of having committed the crime above named to wit: abortion. That on the 20th day of June A.D. 1878 Defendant forcibly and with violence siezed and carried away the said child, Edward H. Conroy against her will and without lawful authority and ever since has detained said child by force and kept him concealed away from this Plaintiff with intent to compel her thereby to return to and live with him. That the said Edward H. Conroy has been ever since his birth and now is seriously affected and diseased with Asthma and has frequently been very sick and in great danger of death there from. That he - said child - now requires and ever has required the tenderest care and nourishment and constant attendance and medical aid and is subject from sudden changes of the weather or from slight exposure to a severe return and attack of said disease, and if not treated with the greatest and most tender and constant care said disease will in a short time induce pulmonary diseases - and death. That Plaintiff is in a situation to care for and maintain and educate said child in a suitable and proper and even luxurious manner and to watch over and provide for him as the nature of the disease, aforesaid, and the circumstances of said child require and is ready and willing so to do and that said child even has been and now is and long will be in need of a mother's constant and tender care and nourishment and that Defendant cannot so care for and maintain and educate him and is not a fit person so to do by reason of the conduct aforesaid and the condition of said child and that Defendant has not sufficient means to procure and provide proper and sufficient care and nourishment for said child. That Defendant has ever well known the condition and requirements of said child and the facts aforesaid relative thereto and has taken and now conceals and detains said child with intent thereby to coerce said Plaintiff to live with him. That Plaintiff in the fall of 1876 became ? in her own right of about Two Thousand Dollars ($2000.00) in money and that ever since said time Defendant has made repeated attempts to obtain said money and the whole thereof for his own use: but that Plaintiff has ever refused to give it up to him for the reason that she desired to save and keep it for the proper maintenance and education of their said child Edward H. Conroy and so informed Defendant and Plaintiff believed from the habits and conduct of Defendant as herein set forth that he would waste and squander the said money in drink and otherwise foolishly if she allowed him to have it and that said Defendant has harrassed and annoyed and now does harrass and annoy and injure her and seek to induce and compel her to return to him and live with him in order to obtain posession of the said money. That ever since she last left Defendant - July 4th 1877 as aforesaid - he has refused and neglected to provide for her support and maintenance and that of their said child though well able so to do. Wherefore Plaintiff prays that the marriage heretofore existing between Plaintiff and Defendant as above set forth may be forever dissolved and a divorce decreed according to the statutes in such case made and provided and that Plaintiff may have the care, custody, maintenance and education of the child of said marriage Edward H. Conroy without any interferrance of Defendant whatsoever and for such other and further relief in the premises as to the court may seem Just and Equitable. Baugs and Ewery Plff. Attys. Le Sueur Minn. H. J. Peck and L.M. Brown Shakopee Minn Of Counsel State of Iowa } ss Clinton County } I E.M. Purcell Sheriff of said Clinton County & State of Iowa hereby certify and return that I received the within Summons and Complaint for service on the 5th day of July A.D. 1878 and that on said 5th day of July 1878 I Served said within summons & complaint on the within named defendant Henry Conroy by giving to him personally a true copy of said within summons and complaint at the town of Dewitt in said Clinton County and State of Iowa. Signed E M Purcell (Sheriff of Clinto Co, Iowa) Sworn and subscribed to before me on this 6th day of July A.D. 1878. W B Leffingwell State of Iowa, } ss Clinton County } Sheriff fees in full 4.00 Clerks in full 1.00 ---- 5.00 Paid in full by Bangs & Emery Attys EM Purcell Sheriff I, W B Leffingwell, Clerk of the District Court and for said County, being a Court of Record, do hereby certify that E.M. Purcell by whom the foregoing affidavit was taken, and who has signed his name to the said return, was at the time of so doing, to wit: on the 6th day of July A.D. 1878, Sheriff in and for said County, duly qualified, commissioned and sworn, and authorized by the laws of the State of Iowa and all his official acts, as such, are entitled to full faith and credit. I further certify the signature of the said E.M. Purcell to be genuine. In Testimony Whereof, I have hereto set my hand, and affixed the seal of said Court, this 6th day of July 1878 W.B. Leffingwell CLERK STATE OF MINNESOTA, }SS. County of Le Sueur } Harriet Conroy came before me personally, and being duly sworn, doth say that she is the Plaintiff in the above entitled action; that the foregoing Complaint is true of her own knowledge, except as to matters therein stated on her information and belief, and that as to those matters she believes it to be true. SUBSCRIBED AND SWORN TO BEFORE ME On this 29th day of June A.D. 1878 ?.? Emery Notary Public, Minn. State of Minnesota } District Court } County of Le Sueur } 8th Judicial District } Harriet Conroy Plff Agst Henry Conroy Deft To Henry Conroy Defendant above named. Take notice that on the summons & complaint served on you in the above entitled action and on the annexed petition of Harriet Conroy and affidavit of Geo. D. Swaine and Cynthia Stewart a motion will be made before the Hon. J. L. McDonald Judge of said Court at his chambers in the city of Shakopii County of Scott state of Minnesota on the 23rd day of July 1878 at one oclock in the afternoon of said day for an order awarding the care custody and control of Edward H. Conroy the infant son of the parties to this action ? Harriet Conroy. This plaintiff during the finding of this action and until the further order of the court in the ?. The grounds of this motion are that such care custody and control is and will be for the best interest and welfare of said infant child Edward H. Conroy as ? fully appears in said complaint, petition and affidavit. Le Sueur Minn } Bangs & Emery July 2nd 1878 } Plff's Atty State of Iowa } SS Clinton County } I E.M. Purcell Sheriff of said Clinton County & State of Iowa hereby certify and return that I received the within notice of Motion petition of Harriet Conroy and affidavits of Geo. D. Swaine and Cynthia Stewart on the 5th day of July A.D. 1878 and that on on said 5th day of July A.D. 1878 I served said notice petition and affidavit on the defendant Henry Conroy mentioned therein by giving to him personally a copy of said notice petition and affidavits in the town of Dewitt the county of Clinton and State of Iowa. Dated Clinton July 6th - 1878 E.M. Purcell Sheriff of of said Clinton County Iowa State of Iowa } SS Clinton County } E.M. Purcell being first duly sworn says that he is Sheriff of the county of Clinton State of Iowa that he personally served the within attached notice of Motion petition of Harriet Conroy and affidavits of Geo. D. Swaine and Cynthia Stewart on the Defendant Henry Conroy therein named as shown in above return in the town of Dewitt in said County and State on the 5th dat of July A.D. 1878. Signed E.M. Purcell (Sheriff) Sworn and subscribed to before me this 6th day of July A.D. 1878. From: Le Sueur County District Court, Civil Case File 1096 State of Minnesota } District Court County of Le Sueur } SS 8th Judicial District Harriet Conroy Plff. vs. Henry Conroy Deft The Petition of Harriet Conroy respectfully shows to the court: That she is the Plaintiff in the above entitled action and the lawful wife of Henry Conroy the Defendant therein. That she has brought said action to procure a divorce from said Defendant on the grounds of cruel and inhuman treatment of her by said Defendant as more fully appears by the complaint served in said action which is hereby made a part hereof. That the only issue of said marriage is one child to wit Edward H. Conroy born November 17th A.D. 1874 and now aged Three (3) years and Seven (7) months as set forth in said complaint. That said child now is and ever has been weak and sickly and seriously diseased with asthma and that he has - ever since his birth - has frequent attacks of said disease and of so serious a nature and extent as to frequently endanger his life therefrom. That such attacks are and always have been brought on by sudden changes of the weather or loss of sleep or sudden excitement and that said child is and ever has been constantly in need of a mothers watchful and tender care and nourishment: and of medical treatment. That Plaintiff is now and for a year last past has been residing with her mother at the latter's home in LeSueur County of LeSueur and State of Minnesota and has ever had the care and custody of said child. That her said mother is in affluent circumstances, possessed of a comfortable home, and is able to and does furnish Plaintiff and her said child with all the comforts, and many of the luxuries of life, and will ever continue so to do so long as Plaintiff desires to and does remain with her: and that Plaintiff is abundantly able herself to provide all needful comforts, maintenance and support for herself and for said child and is ready and willing so to do. That Defendant from whom Plaintiff separated in July 1877 as set forth in said complaint on account of his cruel and inhuman treatment of her well knows and has ever known the condition and requirements of the said child and the comforts and convenience of Plaintiffs home and the treatment which said child required, and there received, and has not the means to provide such care and ? and treatment for said child as the circumstances aforesaid require: nevertheless that Defendant has on June 20th 1878 forcibly siezed and carried away said child and now keeps him concealed from Plaintiff purely with malicious intent as in said complaint set forth. That Defendant has at all times had free and perfect access to said child whenever he desired it. That on more than one occasion during the month past prior to June 20th 1878, Defendant had assured Plaintiff that he would never take the said infant from her care and custody except by proper order of the court which assurances this Plaintiff believed from the fact that Defendant was and knew himself to be totally unable to provide proper care and nourishment for said infant. That Plaintiff on June 20th 1878 was about to take the said infant to one Dr. Mayo a practicing physician of celebrity residing at Rochester Minn. for medical treatment on account of said disease and had then gone to the Railroad Depot at LeSueur aforesaid with the child for that purpose and was there awaiting the arrival of the main. That while at the depot as aforesaid, Defendant approached her and informed her that he was going away from LeSueur and desired her to go and live with him which Plaintiff knowing his nature, habits and disposition, and mindful of his cruelty as in said complaint mentioned and set forth refused to do: whereupon Defendant asked to be allowed to take said infant for a moment - as this Plaintiff supposed to caress him and bid him good bye and Plaintiff believing his assurances as aforesaid allowed him so to do - but before Plaintiff was aware of his real intentions, said Defendant had seated himself - with the child in his arms, crying - in a conveyance previously by him engaged for that purpose - and was with the said infant therein driven rapidly away. That Defendant still detains and conceals said infant though unable to suitably care for and nourish him - to the great danger of said infant's life and health out of malice toward the Plaintiff and for the purpose of harrassing and annoying and injuring her. That Defendant is not a fit person to have the care, custody and control of said infant during the pendency of this action for the reasons above set forth, and the further reasons that Defendant ? and is about to remove said infant out of the jurisdiction of this court: and that Defendant is wholly unused to the care, government and nourishment of young children and is a man of violent passions and ungovernable temper and has on more than one occasion struck, beat and maltreated said infant without any just cause or provocation - on account of the violence of this Defendant's temper and passions as aforesaid. That Plaintiff is accustomed to the care and government of said infant and is abundantly able to provide for it and will so provide the best of care and nourishment and will support and maintain said child in a suitable and proper manner and keep said infant within the jurisdiction of the court during the pendency of this action and until the further order of the court in the premises. Therefore your petitioner prays you to grant her the custody, care and maintenance and control of said infant, Edward H. Conroy during the pendency of this action and until the further order of the court in the Premises: and your petitioner will ever pray. Harriet Conroy State of Minnesota } SS Counry of LeSueur } Harriet Conroy being duly sworn says that she is the Plaintiff and Petitioner named in the foregoing Petition: That she has heard read the foregoing petition by her subscribed and knows the contents thereof and that the same is true of her own knowledge except as to matters which are therein stated on her information and belief and as to those matters she believes it to be true. Subscribed and sworn to } before me this 1st day } Harriet Conroy of July A.D. 1878 } ?. D. Emery Notary Public Minn From: Le Sueur County District Court, Civil Case File 1096 State of Minnesota } District Court County of LeSueur } SS 8th Judicial District Harriet Conroy Plff. vs. Henry Conroy Deft State of Minnesota } County of LeSueur } SS Cynthia Stewart being duly sworn says: that she is the mother of Harriet Conroy, Plaintiff above named, and acquainted with Henry Conroy said Defendant, the husband of said Plaintiff and has known him well for the five (5) years last past. That she has resided in LeSueur in said county and state for more than ten years last passed. That she knows - and has known even since his birth- Edward H. Conroy - the son of said Plaintiff and Defendant and grandson of this Deponent. That she has ever known and now knows the condition and requirements of said child and that he is and ever since his birth has been afflicted with Asthma to a very serious degree and that on very slight exposure, loss of sleep, sudden emotional, or change of weather said infant is subject to a fit of asthma frequently lasting two or three days. That said infant is weak and sickly and requires the most constant, watchful, and tender care and treatment on account of his condition and disease as aforesaid. That for a year last past the said child and his said mother, Harriet Conroy, have resided with this deponent at her house in LeSueur aforesaid and have on diverse occasions since November 1874 so resided there. That Deponent is possessed of a comfortable house, well supplied with all the comforts and many of the luxuries of life. That she has a good, and stable income, and is able to care and provide for her said child and grandchild abundantly and is ready and willing and intends so to do so long as they live. That the said Defendant Henry Conroy is not a fit person to have the care, custody, and control of said child during the pendency of said action. That said Henry Conroy has frequently been at her house in LeSueur while said Plaintiff and said child were there and that for a long time Plaintiff and Defendant and their child resided with her. That she knows said Defendant to be a man of violent passions and of ungovernable temper wholly unused to the care and supervision of young children, and cruel and oppresive to them. That in February A.D. 1876 at some date to Deponent now unknown said Defendant being at the house of Deponent - where Plaintiff and said child then were - went into the parlor and called the said child to him and commenced to play with and amuse him by showing him some pictures in an album. After a few minutes Defendant becoming weary, laid aside the book, when the child reached after it crying whereupon Defendant ordered the infant to stop crying and told him he could not have the book: but the child - not old enough to understand him - still kept reaching for the book and crying: whereupon Defendant struck its hands down with his own in a violent manner and siezed and held said child firmly in his arms at the same time offering it the book: but as the child stopped crying and endeavored to take it from him Defendant quickly drew the book away again and would not permit him to have it: that the child then reached after it once more crying from pain and disappointment when Defendant rudely struck his hands down and again offered him the book but withdrew it before the infant could take it: and this Defendant repeated several times, annoying the child purposely and maliciously: at last while the child was crying from the vexation, pain and disappointment this caused Defendant [to] put his own hand over said infant's mouth to still his cries and threw him upon the floor and siezed him by the throat in a violent passion, and choked him, whereupon Deponent being present interfered and caused him to desist. That by reason of said conduct of Defendant, and the violent emotions thus excited - said infant was immediately thereafter prostrated with a violent attack of asthma and continued in great pain and weakness and sickness therefrom for several days. That said Defendant was then and had been for a long time prior thereto well aware that such excitment and irritation would cause said child to be so prostrated with said diseases and ? Deponent ? not. Subscribed and sworn to } before me this 1st day } Cynthia Stewart of July A.D. 1878 } ?.D. Emery Notary Public Minn. From: Le Sueur County District Court, Civil Case File 1096 State of Minnesota } SS. District Court County of LeSueur } 8th Judicial District Jarriet Conroy Plff vs Henry Conroy Deft State of Minnesota } SS. County of LeSueur } George D. Swaine being first duly sworn says: that he is and for the last four (4) years has been a practicing physician and surgeon residing in Le Sueur Minnesota, and practicing in said town and the vicinity - That he has for the last two years been the family physician of Mrs. Harriet Conroy, the above named Plaintiff, and is her brother-in-law: and that he knows her child Edward H. Conroy and his condition. That he has seen the said Edward H. Conroy frequently, ever since his birth, which occurred in November A.D. 1874 and has ever since been and is now acquainted with his physical condition. That during the two years last past he has frequently been called upon to visit said Edward H. Conroy as his Physician and has at such times frequently prescribed for him for "Asthma", a disease with which said child - Edward H. Conroy - has been afflicted at short intervals ever since his birth, sometimes every night, sometimes twice a week and sometimes twice a month. That said child has a hereditary predisposition to the disease aforesaid and very slight exposure, fright, indigestion, sudden emotion or loss of sleep is sure to be followed by a paroxysm of Asthma, which will continue according to the severity of the attack from twelve hours to two or three days. That he has always been able to materially help and relieve said child during these attacks by the administration of proper remedies. That Asthma is hereditary in a majority of cases in males more often than females. That Death almost never ensues during a fit of asthma, but dilatation of the pulmonary air cells, enlargement of the heart, Bronchitis and other pulmonary diseases very frequently result therefrom causing an early death. That said child can be helped by medicene but not cured of said disease thereby: that ? care, kind nourishing, constant watching, and attendance, and a mother's watchful guarding in a quiet peaceful home, where the necessities and comforts of life can be given him are the things most needed by said child and that in this way he will outgrow and recover from said disease, render there are ? ?: while a life among strangers, subjected to exciting and irritating influences will probably agravate his disease and cause an early death. That he knows Cynthia Stewart the mother of said Plaintiff and that she is well fitted and prepared to afford such a home for said Plaintiff and said child as he most needs. That he knows that said Plaintiff and said child have during all the past year resided with said Cynthia Stewart at her said home and that said child has been in the care and custody of said Plaintiff during all of said time: and that he knows the care and treatment which said child has received during said time, and that the same has been in the highest degree suitable and proper. Subscribed and Sworn to } George D. Swaine, M.D. before me this 1st day } of July A.D. 1878 } ?.D. Emery Notary Public Minn. From: Le Sueur County District Court, Civil Case File 1096 State of Minnesota Dist. Court 8th Dist. County of Le Sueur Harriet Conroy } vs } Henry Conroy } This is an action for divorce and the custody of the child of the parties. It appears that the plaintiff (whose age is twentysix years) and the defendant (whose age is twentyseven years) were married on the 10th day of September 1873; and that they lived together, uninterrupted until July 1876; that at that time plaintiff took their child "Eddie" - who was born in November 1874 - and went to her father's house, with the intention of parting with defendant, and did not live with him again until May 1877. That after plaintiff went to her parents (in July 1876) as aforesaid, a reconciliation took place, and defendant went to Iowa to work, with the understanding between plaintiff and him that plaintiff was to go to him, and remained absent until May 1877, when he returned for the purpose of taking plaintiff and their child with him to Iowa - plaintiff having failed to go as agreed. That upon his arrival at Le Sueur, plaintiff refused to go with him to Iowa, as previous arranged, and that he secured employment at Le Sueur Centre and remained in that employment until June 1878. That from the time of his arrival from Iowa in May 1877, until July 4th 1877, plaintiff and defendant lived and cohabited together as man and wife - she living with her mother in Le Sueur and he going into Le Sueur each Saturday and remaining with plaintiff until the following Monday; and she, on two or three occasions during that time going out to Le Sueur Centre, and remaining with him, days and nights, and sleeping, and occupying the same bed, with defendant. That on the 4th of July 1877 defendant drank intoxicating liquors, and plaintiff, ?. That as a reason, refused to longer live and cohabit with defendant; and since that time they have lived separate and apart from each other. That on the 20th day of June 1878 the said plaintiff was with said child, at the railroad depot in Le Sueur, with the view and intention of proceeding to Rochester Minnesota, and that then and there, defendant took possession of said child, against the will of plaintiff, and proceeded with it to Tipton Iowa, where said defendant has (with said child) ever since resided, with the view and intention of making it his home, and at which place he is employed, for an indefinite period of time, as station agent for the Northwestern railroad company, at sixty dollars per month. This action was commenced on the 29th day of June 1878. The divorce is asked for upon the grounds of cruel and inhuman treatment and drunkenness. All specific acts of violence alleged to have been comitted prior to their said reconciliation and living together in May 1877, and the general allegation of drunkeness is in these words: "That defendant was prior to and at the time of said marriage and ever since has been, up to within eight months last past, addicted to the frequent and excessive use of intoxicating liquors as a beverage." The defendant denies each and every act of violence alleged, with one exception, which he admits but claims, in mitigation, that it was provoked by plaintiff; and, as to drunkeness and the use of intoxicating liquors, admits that, prior to August 1877, he has at times used such liquors as a veberage, and sometimes to excess, but not to the extent charged; and avers, "that often since any of the acts alleged in the complaint against the defendant, the plaintiff fully forgave him for any offensive or improper treatment towards her, and fully condoned it, and promised to live with him as his wife, when he should become able to support her in stule." He further avers "that at the time these parties married, the father of the plaintiff and with whom she then lived was poor and in ? circumstances, and the plaintiff had no property of her own, and was compelled to work, and live close and frugally. That soon after said marriage, the mother of the plaintiff became suddenly rich by the death of said father, and by reason of a heavy insurance upon his life, and since that time said mother has exerted a ? influence over said plaintiff, and said plaintiff herself has been more averse, as time advanced, to living with the defendant, unless he could obtain and furnish a house in fine style and support her sumptuously", and "that the plaintiff (who resides with her mother) has never objected to living with defendant by reason of any treatment of him towards her, but only objected on the ground that he could not support her in the style she thought fit to her condition in society." The reconciliation which took place when he went to Iowa in 1876, and their subsequent living together and cohabitation was certainly a condonation of any and all improper conduct on the part of the defendant towards the plaintiff prior to that time - L Bishop on Mar. & Divorce 50; Phillips vs Phillips, 27 Wis. 252, and authorities there cited. And that condonation is a complete and conclusive answer to all these prior acts, unless they were revived by being repeated to such an extent as would warrant the court in believing that it would be improper and unsafe for the plaintiff to longer live with the defendant. To determine what, if any, cruel and inhuman treatment has been revived, let us consider the testimony, as to the prior acts alleged, and see what acts have been established by proof, according to the well settled rules of evidence. Every act of violence or cruelty testified to by plaintiff is contradicted and denied by defendant, except the difficulty in July 1876, when they were living in what they call "the Plowman house". Now, "it is a general rule that the burden of proof rests upon him who has the affirmative of the issue". - I Greenleaf on Ev. 74. And, when the evidence is conflicting, it is incumbent upon the party holding the affirmative to establish the disputed facts by a proponderance of evidence. In this case, plaintiff and defendant are unimpeached and the testimony of each is entitled to equal weight; and therefore, as to all acts of violence or cruelty testified to only by plaintiff and specifically denied by the defendant I must consider the evidence equally balanced, and find the allegations of those acts not proved, because of a failure in the proof. The difficulty in July 1876, in which plaintiff charges defendant with slapping her face, the defendant admits took place, and admits, with regret, that he did slap her once; but he states, in mitigation and extenuation that she provoked him to it. He testified that upon that occasion she used offensive and profane language towards him, and that thereupon he told her if she said it again he would slap her, and that she repeated the language, and he did give her a slap with his open hand. This qualification of the affair she did not deny, and it must be accepted as the correct version of the unfortunate occurance. That the defendant did wrong, in carrying out his threat, cannot be disputed; but the plaintiff was also to blame, in provoking him to it; and, by so doing, deprived herself of all right to use it as a ground for divorce. "It is well settled, that the cruelty which lays a just and legal foundation for a divorce must be ? and unprovoked. And when the wife is ill treated, on account of her own misconduct, her remedy is a reform in her own manners, unless the return from the husband is wholly unjustified by the provocation, and out of proportion to the offense." - Skinner vs. Skinner, 5 Wis. 449 (451) citing, Poor vs. Poor, 8 N.H. 307; Best vs Best, 1 Adams, 410; Holden vs Holden 1 Haff. E.R. 453; Wood vs Wood, L Paige 108; Bedell vs Bedell 1 J.C.R. 604; Watkins vs Watkins 2 Atkins 96. In this case the act complained of was invited, by the plaintiff repeating the offensive language; and however improper and wrong it may be, it cannot be considered as a ground for divorce. The statement that defendant when living with plaintiff at her mothers house, cruelly and maliciously pinched her ear, I find to be not true. Mrs. Porter, upon her cross-examination in relation to it, says: "I then though it was a joke." It was manifestly not done in anger, but in a playful spirit; and the assignment of it here, as an act of cruelty, has every appearance of being an afterthought. The only other act of violence charged and in support of which other evidence, than that of the plaintiff, was offered, was the affair at Brown's; in relation to which her sister, Mrs. Matilda Beecher, testified. That, I must find not sustained by the evidence. Plaintiff testifying in relation to it, says: "I only remember we quarreled. I dont remember any violence at that time." And upon cross-examination she said: "I cant say who was to blame." After this quarrel, and after defendant left the house she sent a note for Mrs. Beecher, and that lady in response to it, went to see her; and it is now sought, by her evidence, as to the condition in which she found plaintiff, and the room she was in, to how that violence had been used by defendant towards plaintiff. This cannot be permitted. If violence has been used by defendant, plaintiff would undoubtably recollect it; and the evidence of Mrs. Beecher is an attempt to prove, by circumstances not necessarily doing so, a fact which, if true, the plaintiff must have been able to testify to - positively. To hold that acts of violence can be proved in this way, would be to establish a dangerous precedent - one which, if followed, would permit designing parties to prove actual violence, but the statement of circumstances which, in fact, might have existed, and yet the defendant be innocent of the commission of the acts sought to be proved in this way. The alleged misconduct of defendant in January 1876 with the child, and about the album I dismiss, with the remark that it is difficult to understand why it was introduced in this case. Considering that "scene" to be as described by plaintiff and her mother, that exhibition of petulance, or temper, on the part of defendant, could not have seriously wounded the feelings of plaintiff, judging from the affectionate manner in which she wrote him shortly after, and in the same year. As to the abusive language which defendant is charged with using towards plaintiff, shortly before their last seperation, it is only necessary to say that this the evidence does not show this conduct, or language, of defendant to be such cruel and inhuman treatment as the law contemplates. The language was unaccompanied by any bodily injury, actual or menaced; and was used in a criticism and discussion of plaintiff's conduct, in his absence; and about which enough has appeared to show that defendant's exhibition of feeling was not wholly unprovoked - even if he was too hasty, or erroneous in his conclusions. Without referring more particularly to the acts of cruelty charged it is enough to say that they are all such as could have been (and were) easily condoned by the plaintiff. All the acts of violence or bodily injury charged, are alleged and claimed by plaintiff to have taken place prior to their last residence together, and cohabitation; and, certainly, in their quarrel, last above referred to, even as stated by plaintiff, was not such cruel and inhuman treatment as would revive the acts of cruelty alleged to have taken place prior to their condonement. This disposes of the charges of cruel and inhuman treatment, and I find them not sustained by the evidence. The charge of drunkeness, as made in the complaint, is certainly peculiar; and, in making it, the language of our statue must have been overlooked. The statue provides that, to be a ground of divorce, it must be "habitual drunkeness for the space of one year immediately preceeding the filing of the complaint", (Sec. 23, subdivision 6th p. 698 Bis. Stat.) and here it is admitted in the pleadings that for eight months prior to the commencement of the action, the defendant has not been "addicted to the frequent and excessive use of intoxicating liquors as a beverage." It manifestly was the intention of the lawmaking powers that, as a ground of divorce, the habitual drunkeness must exist at the time the action is commenced. It cannot be so used, after a reformation has taken place. Defendant testified (and he is uncontradicted) that he has not tasted a drop of intoxicating liquor since he last cohabited with plaintiff. I must therefore find the charge of habitual drunkeness not sustained. That the defendant has heretofore erred in this respect, is undeniable, but he has certainly shown a praiseworthy and so far successful effort to reform; and it is to be regretted if plaintiff cannot view it in this light. In the foregoing I have indicated how I regard the testimony upon all the serious charges made against defendant. All the evidence has been fully considered, but I have deemed it to the interest of both parties not refer to it more in detail, or with more particularity than I have. It is enough to say that the plaintiff has failed to show herself entitled to the relief asked. The plaintiff shows that all the acts of cruelty charged, and in consequence of which she asks divorce were committed prior to defendant going to Iowa in July 1876, but her letters written to defendant soon after his arrival there, negative conclusively, the idea that defendant's previous conduct (whatever it may have been) had not been fully forgiven and condoned. They are each couched in the language which an affectionate and true wife addresses her absent husband, whom she sincerely loves, and whose early return she desires. In her letter to him of August 9th, 1876, she write thus: "Dear Con. Don't scold me for not writing sooner. xxx Eddie gets cuter every day. he tries to say everything; calls us all by name, and says "Papa gone gone town", when we speak of you. xxx Are you getting better? Do write and tell me everything, or I will go wild. Give my regards to ---- ---- and ---- ----, and tell them I said for them to take good care of you, and do write soon. I want to hear from you so bad. Your loving wife, Hattie." In her letter of August 11th 1876 she says: "Dear Con. xxx your letter made me so homesick to see you, that I cried nearly all night with pure homesickness. I Asked Eddie if he wanted to go to Papa, and he said "des" (which is yes) and put his arms about my neck and loved as he always does, when he wants to go with me. xxx From your wife, Hattie." And on January 11th 1877, she wrote him among other things, as follows: "Dear Husband. I am almost ashamed to write, I've neglected it so long, but if you will forgive me, I will try and do better next time. Did you get the New Years present I send you? xxx Eddie got a rocking horse xxx Oh Con. I wish you could be here, we have such nice times, and I know you would enjoy yourself so well. I never go any place but I wish you were there xxx. Your wife, Hattie." The only reason given for asking the court to go back of the condonation, and complete reconciliation which these, and other letters, so conclusively establish, is that they had some warm words in June 1877, and that he drank to excess on July 4th 1877. Plaintiff had lived and cohabited with defendant after the dispute in June so that was condoned - if such was necessary - and all that remained to revive the unhappiness of the past was his drinking on the 4th of July. Deft says he drank, on that occasion, because of the trouble he and plaintiff had the day previous - That they had trouble, and that plaintiff indulged in faultfinding, which may have produced that effect, is shown by plaintiff's own testimony. She says: "I last left him July 4th 1877. I left him because he came home the night of the 3d and I thought he had been drinking, and accused him of it. Could not smell it" etc etc. Plaintiff expects too much, when she asks that this one act of indulgence in intoxicating liquor (which is conceded to have been followed by at least eight months of temperance) be held to revive all that was unpleasant in the past, and obliterate the forgiveness, and love and affection for each other, which is shown to have existed subsequent to their unfortunate differences which are now sought to be resurrected. In the face of the fact that there are thousands of women who submit, in silence, to much harsher treatment, than is here shown, it would almost be a mystery as to what influence had brought about this estrangement and desire upon the part of plaintiff for a seperation, were it not for the fact that all of plaintiffs letters to defendant, which were offered in evidence, disclose that she was continually struggling between her love and affection for her husband, and her duty as a wife - which prompted her to go to him - and the efforts and influence of her mother, to prevent plaintiff leaving her. There is another to this controversy whose interests and future welfare impartially demand the consideration of the court. That other is the child- boy "Eddie", whose existence should alone be an irresitable appeal to his unhappy parents, to forget the unpleasant past, and reunite, and conceal forever from him the evidences of the storm of passion which threatens his future; but about which he is now happily ignorant. During the present state of feeling, on the part of his parents, and while the mute pleading of this child's condition and future welfare, for their early reunion, so unheeded by them, it is only to the court that justice can appeal to protect him from the direful consequences of their deplorable conduct. The defendant deposes that he still entertains a strong affection for the plaintiff, and that he desires a reconciliation; and in the future to make ammends for any errors of the past; and if the plaintiff cannot yield to the promptings of a mothers love, and her latent affection for her husband, and return to him, and make another and mutual effort with defendant to live happily together, it is to be regretted by all who are truly their friends. But it would be a great outrage, and wrong, upon this helpless and innocent child, for this court - for no better reason then is here shown - to sever the marriage tie of his parents, and reduce him to a condition of worse than orphanage. The almost inevitable result of a divorce would be that the parties would (notwithstanding the odium of doubtful respectability, which society always attaches to the divorced wife or husband, under such circumstances) marry again; and the child would be found in the terrible position of having a father and mother living, but separated by an impassable gulf, and possessing also a stepfather and stepmother, and be withal, and practically, an orphan. Justice revolts at the very thought of such a wrong to the child. The evidence shows that the parties hereto have acted more like children than adults, and that both have erred; and that nothing has occurred which should prevent a reconciliation and reunion, and a pleasant and happy future. No court - bound to do justice, and protect all - could, in the exercise of a sound and equitable judgement come to any other conclusion. Upon the subject of the custody of the child, I have but to say that I could not award it to plaintiff, if I would. As shown by my former decision in this case, the father is the lawful guardian of the child, and, as such, is entitled to the custody of it, unless it is made to appear to the court that the welfare of the child required it to be placed in the custody of the mother, or some other more suitable person. In this case the child-boy "Eddie", was afflicted with asthma, or some disease akin to it; but the testimony of defendant showed that the child's health has improved since he took it to Iowa. That testimony was not disputed or contradicted, and it therefore appears by the evidence, that the child is now where he ought to be. It therefore, becomes unnecessary for me to pass upon the question of domicil, or the power of this court to adjucate upon the custody of the child, while it is in Iowa, and beyond our jurisdiction. The plaintiff's prayer for relief must be denied. Ordered: that judgment be entered herein for the defendant. November 29th 1878 J.L. MacDonald Judge 8th Dist.