Smith v. Smith

This is an action for divorce. Plaintiff having died pending the appeal, her heirs-at-law have been substituted as parties plaintiff and the litigation continued, certain property rights being involved. The complaint attempts to allege two grounds of divorce, namely, willful neglect and extreme cruelty. A general demurrer to both causes of action was overruled, and, upon issue made, judgment went for plaintiff, the court finding in her favor upon both counts. The prop *652 erty involved consists of a homestead upon community, an undivided two-tliirds of which was awarded to plaintiff, and .the remaining third to defendant.

The complaint states no cause of action for extreme cruelty. The pleading in this regard alleges that “during the last two years defendant has treated plaintiff in a cruel and inhuman manner”; that defendant has applied the coarsest epithets to her (naming them), and has accused her of a want of chastity. By section 94 of the Civil Code extreme cruelty may consist either of the infliction of grievous bodily injury or grievous mental suffering upon the other party to the marriage. Here there is no allegation of either. Grievous bodily injury, or grievous mental…