xt70zp3vt865_154 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/mets.xml https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46.dao.xml unknown 14 Cubic Feet 31 boxes archival material 63m46 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Harkins Family papers Mineral rights -- Kentucky -- Floyd County -- History. Law reports, digests, etc. -- Kentucky. Mining leases -- Kentucky -- Floyd County -- History. Practice of law -- Kentucky. Bankers -- Kentucky. Banks and banking -- Kentucky -- Prestonsburg. Coal trade -- Kentucky -- Floyd County -- History. Lawyers -- Kentucky. Auxier, Mary Louisa v. Auxier, A.E text Auxier, Mary Louisa v. Auxier, A.E 2016 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46/Box_18/Folder_8/0210.pdf 1918 1918 1918 section false xt70zp3vt865_154 xt70zp3vt865 4, ___—___W. ‘_
Kentucky Court of Appeals

MARY LOUISA AUXIER, - - . - APPELLANT ,

vs ‘

A. E. AUXlER, - . - - - . APPELLEE A

5

§

' PETITLON FOR REHEARING g
. 3
\

HARKINS & HARKINS

j'_ Attorneys for Appeuant :
;, HOPKINS & HOPKINS
; MAY & MAY 3
‘ Of Counsel
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entuc y mart 0 Appeals. ;
MARY LoUIsa AUXIER, Appellant, ,
Against ,‘
A. E. AUXIER, Appellee. 9
__ ,
PETITION FOR REHEARING.
This petition for rehearing is filed with the hope of
securing a modification of the opinion in such a way that
the opinion of the Johnson Circuit: Court will not amount '
- to a bar against the plaintiff in her suit for alimony and
' maintenance pending in the Floyd Circuit Court, as the
enunciation contained in the opinion of the Court of Ap~
peals here and the ruling of the Honorable the Trial Judge
in the Court below might be construed by the judge of the
Floyd Circuit Court to be conclusive upon the rights of —

. the appellant, defendant in the Court below, the elt'ect of ~
which would be to work a great hardship upon her and .
deprive her of her right to be adjudged alimony and main- ,
tenance.

We think that the consideration of the evidence in this
case fully justifies the statement that the husband is shown
to be possessed of large means, and that, under circum- ‘
stances wholly unjustified, he was so cruel and abusive '
to her as to drive her from her home. If we are sustained ’
in this View by the proof in the case, she is certainly, under .

 t

i

, 2 - ..
every principle of justice and right, entitled to be ad—
judged alimony and maintenance, but the effect of 1119,
ruling of the. Johnson Circuit Court and the metlmds pur-
sued there, in allowing an amended petition to be filed

. after the case was submitted and heard, and then adjudg- I

- ing a divorce without service of process upon the amended
petition setting up a new cause of action—certainly a
novel proceeding indeed,—deprives her of alimony and

3 Illaintennnco and leaves her empty-handed.

' The. defendant, Mrs. Auxier, and her counsel, under
the authority of this Court announced in the case of Good-
ing V. Gooding, 19 Ky. Law Rep. 967, wherein the Court
held:

‘ “The appellee having abandoned the home of her
husband in Mason County and taking up her residence
in Kenton County, she properly brought this action
for divorce and alimony in the latter county, and The
Court had jurisdiction to hear and determine the
same, although her petition was filed within three
days after she had abandoned her husband’s home.”

And also under authority of the case of McCliutock v.
McClintock, 147 Ky. page 409, wherein it is said:
“Where a wife, separated from her husband, hav- 1
111g no home of her own to go to, stopped with 21.
relative, her suit for divorce a mcnsa at them is
properly brought in the county where She was stop-
ping; her intention and the fact of location at that
' place making it her residence.” 142 S. W. 68
, were of the opinion that Floyd. County was the county
of her residence and the county having jurisdiction,
V in which her husband was compelled to bring suit

 3

for divorce and in which she was required under
the law to bring her suit for alimony and maintenance.

The finding of the Johnson Circuit Court is in direct
violation of the principles herein announced, and so be—
lieving an appeal was prosecuted in this case, and it seems :
to us that this Court ought to adhere to its ruling in Mc-
Clintock against McClintock and Gooding against Good—
ing. If such is the case, we are entitled to a reversal of
the judgment of the Johnson Circuit Court. Surely, we '
are entitled to a modification of the opinion so that it will .
not work a further hardship upon Mrs. Auxier, in deny-
ing her alimony and n’iaintenance. Of course, at. the time
we appealed from the judgment of the Court below, we
knew, as a matter of law, that the Statute prohibited a
reversal of a judgment of divorce, but we felt that in as
much as the Civil Code, section (537, authorizing a sub-
mission of a controversy to a Court having jurisdiction
for its opinion and from that opinion the right of appeal,
that Mrs. Auxier had the right to submit this controversy
upon the subject of her right to maintain in the Circuit
Court of the county of her residence, Floyd Circuit Court,
an action for alimony and maintenance, notwithstanding
the fact that previous to that time a suit had been com-
menced against her for divorce in the Circuit Court of

‘ Johnson County, and it was for the purpose of getting an

expression of opinion from this Honorable Court upon the
branch of the controversy between them as to whether or
not Floyd County was the county of Mrs. Auxier’s resi-
dence or not, that the appeal was prosecuted.

It seems to us that it is the policy of the law to afford
the wife the right, measurably, to select her forum, in
the sense of requiring an action to be brought against her

 , .
, 4
in the county of her residence, and giving her a right to u
I apply for judicial protection in the county of her resi— g
dence, rather than being compelled to go to the courts of" I
the county where her husband resides, but in this instance
. she is practically deprived of that right. There are many
5 reasons why the interpretation should. be given to the law
giving the wife the right to sue in the county of her resi-
dence. While it is theoretically assumed that the Courts
; will deliver justice without favor or affection, yet, we, as
intelligent persons, must know. that judges are, like other
people, sometimes unintentionally influenced by their
friendships and personal relations to the parties litigant
in Court. The course that the suit of the husband against
the wife has taken in the Johnson Circuit Court measur-
ably justilies the apprehension which Mrs. Auxier felt,
that she was at a disadvantage in that her husband had
a friend at Court. I am free to admit that my personal
esteem for the Honorable the Presiding Judge of the J Ohn-
son Circuit Court was to entertain a belief different from
that expressed by our client, but I am equally free to say
‘ that the proceedings upon the trial were peculiar, if not
erratic. ‘
' It ought to be the purpose of the Courts, either trial .
or appellate, to protect the weak and feeble from injury
at the hands of the strong and vigorous. Here we have a 1
case of a poor woman maltreated, insulted, abused, driven g
from her home by a husband shown to be worth ten or :
twelve thousand dollars in property, and she denied a
penny’s worth of alimony or maintenance. Now, this sort
- of condition ought not exist in a christian country like
ours, when in the Twentieth Century we make claim to
higher attainment and protection of the home and the wife
, .

 i
l
I 5
and children, and to my way of thinking, this record
doesn’t look good as a matter of precedent to set forth to
the oncoming generations to be pointed to as authority
and justification for the assumption that it is the law of
this land that a husband can be niggard, parsimmiious
with his Wife, deny her the necessities of life, be cross, ill-
grained, continually nagging and maltreatiug her, strik-
ing her, and offensively abusing her until she must take
shelter for protection in the home of her family and friends,
and then after motherhood, when the bloom of youth has
been supplanted by the lines of care, by this sort of treat-
ment to be turned out into the cold and cruel world with-
out a dollar, seems to us a relic of barbarism.
I appeal to the sense of justice of the high-minded in-
telligence of this Honorable Court to cancel and correct
such part of its opinion as would make possible the judg-
ment of the Johnson Circuit Court, affirmed by this Hon-
orable Court, become a bar to the proceeding for
alimony and maintenance in the Floyd Circuit Court, and
believing that this is right and that justice should be done,
this petition for rehearing is respectfully submitted.
HARKINs AND HARKINs,
Attorneys for Appellant.
HOPKINS & HOPKINS,
i MAY & MAY,
Of Counsel. 5
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0 Right of way,Lm«-=~L~~_~~$ 75.00
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Corn,—~»r-»---~-~-—W—~~-- 10.00
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1 Apple Tree,—~L-«-‘v~->~__;Q;00 .
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‘ ' X 5165 Panels FenCe, —=-—u— ~~ 181.260 .
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1 The Huntier House , .- » , 100.00
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Dwfiage,~~~~'”~-'Lfk“““““" $91991
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Damage ,»»~--—~~-——-~--w - — ~ * -»--- 50.00 V
Corn,—~v-~—-wuv«'-—~~—-—— _§§.09
, $510.00
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’ Right of way,_-.-.-.;-,--$212,50 ?
12 Apple Trees,«~r-~~==~u 15.00
Move Smoke Iouse,~-v~r-w~ 5.00
Move Residence,» =~~-~--v 200.00 ,
Fence,~en~m-«~r»~~w—¢=r~- 44.80 V
Corn,—~~~»mw~~--~=»~»=«cw 25.00
, Danage,-~~~»~~~»~~~~mw~~— 2§L§Q
.¥ $555.00
§E§fing:1§§¥§'
Right of way,-_111--....-$ 62.50
Fencing,-~«~~~:y4-~-~--~« 10.50 , .
Damage , 1...--.1...-.’. ~ — —--- -7 .. -' 3'7 . 00 f1
4 Apple Trees,~—~n~~——nv— ”£9.99 . ’
$150.00 . .
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Right of Way,u~-m»=~vruav$475.00 «#5 _
2 Fruit Trees,=h-~~nr-~-~ 10.00
)4 Fencing,-~~~-v-nr--—~w~-— 90.00
Damage,n~'vvv‘~-~~=w~v-=- 75.00
Corn,-.....,....--.--............1 £9...ng
$700.00 4
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10 Fruit Trees,«~v-»rr»~~ 75.00 ‘
71 Move Shop,~~v~»»--»—~»——w 50.00 ‘
' Move Smoke Shop,«u»—~~rr~ 25.00 ‘
5 Trees,-mL~----r-w»~--~w 5.00 j
Fence,~wr»-~~~~-t—vn—’nmw 55.50 g
, Continued on next page. , 1 1,.1 ‘j

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5 Gardens,~~m~55~~~vw~~x—$75.00
Move Residence,~-n~»~-5wmuoggL003
T o t a 1,-w-w5--~»u$l§60.00
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Clifton House,“ -~—‘«~~5~$100.00 3
Clifton Stable,-~-55«rt»~ 10.00
5 Fruit TreeS,—~5-=-~-r-= 5.00 ,
Buggy House,~umw»~5-~r~-m 10.00
Store Building,«~—~rrr««r 500.00 x
Water Closet,-~~v5~~—n«‘— 10.00 g 3
Coal House & C.,—uv~r»~»» 10.00 \<
Smoke House,=5~~~~~-e-~~— 40.00 2‘
» Milk House,—m~~Fv—vrw—n«~ 40.00
Lumber House,-~~~e»5~-~-r 5.00
10 Trees,—m»-~~~~55~5~—~= 50.00 j
Clifton Crop,—~v5=5—5r=~5 50.00 3
Residence,-5v5vr~w~~~5~v-2500.00 :
Eight of Way,m~v-=—~~~~-r 366.00 3
Dannge,-~:-=e-~zr-:-—~~¢~1500,00" 3
$Z§i4.00 3
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Buildings,~w-«n-n5~~—~~e~ 100.00
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' $350200 ‘
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7L Demage,~w~vm~~m5r--n~5mr- 200.00 ‘ ;
Fence,...._..... -.111-.-.-._.,_........... £,8_:§9 _
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Buildings (Residence),—~~1000.00
15 trees,-»~~---»m—--»m~5 45.00
Cistern,-~~-~—vw—r5~w~~5e 100.00
Wé Coal House,—»~~~~m—~~5-5~ 2.00 t
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Ware House,—u»--~-—«w—»«~ 200.00 1
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