
    Honoria Brown v. John Brown.
    
      MU for a limited divorce. Evidence. A bill by a wife, charging that her husband, the defendant, had been guilty of inhuman and cruel treatment, and had grossly, wantonly, and cruelly refused and neglected to provide a suitable maintenance for her, and had grossly and cruelly refused to support her, — the defendant being of sufficient ability, — sufficiently sets forth the cause for which a limited divorce may he granted under § SMS of the Comp. Laws. And the bill being sufficient for this purpose, then all the circumstances which go to show that the refusal and neglect were gross, wanton and cruel, or which rendered it unsafe and improper for the complainant to reside and cohabit with the defendant, are admissible without specification of particular acts.
    
      Alimony. In fixing alimony in a decree for a limited divorce, where the income of the husband derivable from his property is not sufficient for the support of all dependent upon it, and the parties have been accustomed to rely upon their joint labor for their support and accumulations; the allowance ought not to be so large as to relieve the wife from all necessity for doing any thing for her own support.
    
      Practice in chancery: Taking proofs before a Commissioner. Circuit court commissioners have no power to control the order of taking proofs before them, in chancery cases. Hither party during the period allowed by the rules for taking proofs may take his testimony in any order he may choose.
    
      Heard January 7.
    
    
      Decided January 10.
    
    Appeal in Chancery from Ionia Circuit.
    The bill in this cause was filed by Honoria Brown in the Circuit Court for the County of Ionia, in Chancery, against John Brown, for a, limited divorce, on the ground that he being of sufficient ability to provide a suitable maintenance for her, — § 3228 Comp. Laws, — grossly, wantonly and cruelly refused and neglected to do so. The defendant answered; a replication was filed and proof taken. The cause was heard upon pleadings and proofs, and a decree for a limited divorce was entered, with a provision for alimony of four hundred dollars per annum. The defendant appeals to this court.
    
      W. B. Wells, for complainant.
    
      Willard Kingsley and James Miller, for defendant.
   Cooley, J.

The bill in this case was filed to obtain a limited divorce and for alimony. The parties were married November 10, 1845, and the bill avers as the cause for divorce, the following: “That the said John Brown, wholly disregarding the solemnity of his marriage vow, and his duty to your oratrix, has during the last three or four years been guilty of inhuman and cruel treatment of your oratrix, and for the last year has grossly, wantonly and cruelly refused and neglected to provide a suitable maintenance for your oratrix. And your oratrix further shows unto this honorable court and charges the truth to be, that the said John Brown did, on or about the fifteenth day of December, 1867, and for the whole year last past, grossly, wantonly and cruelly refused to support your oratrix; that she has frequently applied to the said John Brown to provide for her a suitable home and a comfortable support; he, the said defendant, has uniformly refused so to do, and replied that he would not support your oratrix, and that she might go to the poor-house for aught he cared, and that she should never receive any support from him.” The bill contains further allegations, showing the pecuniary ability of the to support his wife well, and that she has always been faithful and devoted in her marital relations.

It was not claimed by the complainant that this bill would warrant a divorce for extreme cruelty, nor was the evidence in the case taken on any such theory. On the contrary, all the evidence is directed to the question of a gross, wanton and cruel neglect and refusal to support A question is made in this court of the sufficiency of the bill to warrant any decree for complainant, and the testimony taken appears to have been objected to on the ground that no case was made by the bill, because the cruelty charged was not set out with more particularity; but as a bill for a divorce on the ground of refusal to support, we think it is sufficient. In suing for a divorce on that ground, it was not necessary to aver any cruel treatment, except what was involved in the gross, wanton and cruel neglect, and refusal of the defendant to support his wife, he being of sufficient ability. The bill in this case contains somewhat more than is generally essential, and would not therefore have been open to objection even on demurrer.

It appears, however, from the evidence, that the complainant is living apart from the defendant, and that while he refuses to furnish her the means of support away from his home, he nevertheless expresses a willingness to receive and support her there. It was to meet this excuse of the defendant for his refusal to support his wife, that we suppose the averments of cruel treatment are made in the bill; and the complainant has endeavored to show by the evidence such specific acts of cruelty on the part of defendant as in effect drove her away from his house, and placed him under legal liability to support her elsewhere.

If the bill was sufficient — as we have already determined that it was — as a bill for divorce on the ground of neglect and refusal to support, then we think all those circumstances which go to show that that refusal and neglect were' gross, wanton and cruel, were properly admissible under it ;. and among these would be the cruel treatment which rendered it unsafe and improper for the complainant to reside and cohabit with the defendant. We do not, therefore, discover any difficulty with the pleadings, and we think the evidence taken was admissible under them.

Upon the merits we confess to having had considerable difficulty in reaching a satisfactory conclusion. The ability of defendant to support his wife, and his refusal unless she will return to his house are admitted, but the showing is not very strong that his bad behavior was of that character that justified the complainant in breaking up the family and abandoning all efforts to effect a reconciliation. Never-' theless we cannot say on this record that she was not so justified; and it cannot be doubted, we think, that defendant’s conduct at times twas violent and cruel, and quite regardless of his marital obligations; and we do not feel justified in reversing a decree of the circuit court which finds so much support in the evidence. We are the more inclined to allow it to stand, inasmuch as the difficulties have continued for a considerable periodj and until any amicable arrrangement may well be regarded as extremely improbable.

We think, however, that the allowance of alimony was too liberal. The defendant is shown to be worth ten thousand dollars. The parties are evidently people who have always been accustomed to live in an economical way, and to rely upon the joint labor for their support and accumulations. There are two children of the marriage, one of whom is too young to do much towards his own support, and he remains with his father. The allowance in such a case ought not to be so large as to relieve the wife from any necessity for doing any thing towards her own maintenance, when the husband’s income from his property cannot be reasonably expected to be sufficient for the support of all. The burden of her support ought to be reasonably apportioned; and in this case if we allow the wife the annual sum of two hundred and fifty dollars, payable quarterly, according to the terms of the original decree, during the joint lives of the parties, we shall be doing justice between them as nearly as we think practicable. The decree of the court below will be modified to that extent, and the cause remanded for execution of the decree. No costs are awarded in this court. This decree is not to preclude the right of the court below to modify the alimony hereafter under the statute, as the circumstances may seem to require.

We think it proper to remark upon a matter of practice which appears by this record. It seems that the circuit court commissioner regarded it as his duty to hold the parties to the same order of proof to which they would be held in a trial at law, and he accordingly refused to take certain evidence because, though relevant to the party’s case or defence, it was not brought forward by the party until the time for rebutting testimony, and was not rebutting in character. The commissioner has mistaken the practice. Either party during the period allowed by the rules for taking proofs, has a right to take his testimony in any order he may choose; and the complainant is not precluded from offering proofs in support of his original case, by the fact that the defendant has gone into or gone over his defence. The same is true of the defendant. He may put in any relevant testimony at any time before the proofs are closed. We mention this because in one or two other cases we have noticed similar rulings by commissioners. The commissioner has no right to reject testimony; it is for the court to decide upon its admissibility.

The other Justices concurred.  