October 5, 2012

Franklin Owsley v. Susan L. Owsley, Rockcastle, 1880

Franklin Owsley v. Susan L. Owsley.

COURT OF APPEALS OF KENTUCKY

10 Ky. Op. 667; 1880 Ky. LEXIS 301; 1 Ky. L. Rptr. 124

June 19, 1880, Decided

PRIOR HISTORY:   [**1]  APPEAL FROM ROCKCASTLE CIRCUIT COURT. 

DISPOSITION: Judgment affirmed. 

COUNSEL: Van Winkle & Rodes, for appellant.

W. G. Welch, for appellee. 

JUDGES: Judge Hargis. 

OPINION BY: Hargis 

OPINION

 [*668]  Opinion by Judge Hargis:

The appellant failed to aver in his petition that the alleged abandonment by his wife for one year was without his fault, or that he was not in fault. The appellee having demurred to the petition, his attention was called to its condition, and he should have cured the substantial defect in it by amendment, if he could have truth-fully done so. As he has failed to make the allegation that he was not in fault, upon which his right to a divorce depended by the express terms of the statute, his petition, even after amendment, does not state any cause of action, and the court below properly dismissed it. Epling v. Epling, 64 Ky. 74, 1 Bush 74.

Wherefore the judgment is affirmed.

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