TARTER v. TARTER

 

 Part I.              Miscellaneous paperwork

 Whereas we the undersigned Jacob Tarter and Mariah Tarter have agreed that we will separate and live apart - Now I, the said Mariah do hereby bind myself to relinquish and give up all claim of whatever kind or interest which I have in and to the property and estate both real and personal of said Jacob Tarter; and the said Jacob Tarter agrees to give up all interest which he has to the estate of said Mariah Tarter of whatever kind or interest. This agreement is made in consideration of a separation made between us, and upon a petition filed for divorce by either, the other binds himself or herself to agree and consent to a Judgment of divorce, separating and divorcing each, this 16th day of May 1859. [This is "the writing" to which is referred in other documents. -- jg]

tes:       his  /s/ T. Pennington,  /s/ Jacob X Tarter, /s/ I.F. Brown mark, /s/ D. Tarter, her /s/ Mariah X Tarter mark

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Received of Jacob Tarter one hundred Dollars in full of all my charges ag[ain]st him in any way whatever as claims that I might establish as being his wife and I hereby bind myself to not make any new charges or bring or cause to have brought any suits against him for damages as my maintenance as his wife.

Given under my hand this 31st day of May 1859.

Attest   her /s/ C.J. Sievers, /s/ Mariah X Tarter, /s/ Joshua Taylor  mark

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summaries of summons and notices issued

 * Summons for Mariah Tarter to answer within 20 days a petition filed against her by Jacob Tarter. Return of summons due on the first day of the July term of court. 23 May 1860. [Notice of execution not included in copies.]

* Summons for Jacob Tarter to answer within 20 days a cross petition filed against him by Mariah Tarter. Return of the summons due on the first day of July term of Court. 7 June 1860. "Executed 18 day of June 1860 on Jacob Tarter by delivering him a copy of the within. Sheriff fee 50c."

 Mrs. Mariah Tarter,

You are notified that on Tuesday 26th day of June at Z. D. Porch' Examiner office in Somerset, I will take depositions to be read as evidence in the suit in Equity pending in the Pulaski Circuit Court whereas I am Plaintiff and you are defendant. 18 June 1860   /"s"/ Jacob Tarter

Mr. Jacob Tarter, On the 3rd day of the next July term of the Pulaski court, I shall at the courthouse in Somerset, move the Judge of said court to grant me an allowance as alimony in a suit for a divorce pending in said court in which you are Pltff. and I am Deft.  June 26, 1860.                /s/ Mariah Tarter "Executed June 26th 1860 on the within named Jacob Tarter by delivering to him a true copy of this Notice."

 * Summons for Daniel Tarter, Theophilus Pennington and Floyd Brown for the 26th of June 1860 on behalf of Pltff. Jacob Tarter. 18 Jun 1860.

"We accept [two words]" /s/ Daniel Tarter, /s/ J. F. Brown, /s/ T. Pennington [no date]

* Summons for John Compton, Helen Compton, R. B. Dunbar, Franklin Weddle, Martha Tarter, Ruttice Tarter, Docia Ann Weddle, Joshua Taylor, Jas. S. Weddle & Henrietta Weddle, Nancy Warner, A. McDaniels to appear at the Irvine house in the town of Harrison on the 13th day of Sept. 1860 to give evidence on behalf of Deft in a suit in equity pending in the Pulaski Circuit Court in which Jacob Tarter is Pltff and Maria Tarter is Deft.  Given under my hand this 1st day of Sept. 1860.    /s/ C.B. Bachellor, Examiner.

"Executed in full except R. B. Dunbar & Helen Compton"

 Jacob Tarter, I shall at the Irvine house in the town of Harrison on the 13th of Sept next take depositions to be read on my behalf in a suit in equity pending in the Pulaski Circuit Court wherein you are Pltff and I am Deft and shall continue from day to day until complete. Sept 1, 1860 /s/ Mariah Tarter  "Executed 1st day of Sept. 1860 on Jacob Tarter by delivering him a copy of the within. Sheriff fee 25c."

* Summons for Rachel Norfleet, Mary Ann Norfleet, William Weddle to appear on 15th Sept. 1860 in the town of Harrison to give depositions in the case of Jacob Tarter v. Mariah Tarter. 3 Sept. 1860 /s/ E.D. Porch, Examiner.

"I accept the service of the within notice Septr 1860" [no signature(s)]

 * Summons for Nan Weddle, Emila Dunbar, Luisa Foster, Rutha Tarter, Helen Compton, Charles Denham, & Ann Duck to give depositions on behalf of Deft Mariah Tarter on the 14th of September 1860. Dated Sept. 1, 1860. [Several names marked out: W.G. Cundiff, J. M. Weddle, Nuten Tarter, Sollomon Weddle __, and a last name for the above Nan Weddle.]

"Executed on the within named Martha Tarter & Emily Dunbar, Ann Duck, Helen Compton, Charles Denham & Nancy Weddle." [no date]

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Jacob Tarter, Pltff. agt [against] Maria Tarter, Deft.: By Equity

The Deft by her counsel moved the Court for an order on Pltff. to pay the costs of this suit and also to pay her attorneys Bradley & Bachellor a reasonable fee for their services in prosecuting her suit for alimony and divorce. Deft by her counsel also proposed to prove by Sherrod Williams and T. L/S. W. Sawyers, two practicing attorneys of this bar, that reasonable value of the services of her said attys were reasonably worth one hundred dollars. [Underlined words appear to have been marked through -- jg]

Said motion was overruled by the court, to which opinion the Deft excepts, and prays an appeal which is granted. And by agreement of the parties this motion was to be tried in connection with the suit either in the court below or Court of Appeals. [no date]

Jacob Tarter vs Mariah Tarter: Plaintiffs

Sept 1860

Filing petition 10c. Order noting filing reply to Defts Ret. 25c =            35 [cents]

Summons 25c, copy 10c, Return 10c, atty 10c, docketing case 10c     65

Appearance 10c, order transferring to equity 25c                                  35

Filing depositions 20c each, 40c                                                            40

Order of continuance                                                                            25

March 1861    Order of continuance    25c, docket case 10c                            35

______                                                                                                       $2.30

March 1862 term

Docketing case 10c, appearance 10c, order of continuance 25c            45

Order setting aside continuance 25c, order of submission 25c    50

Judgt 25c, recording judgt 20c, ent. judgt & satisfaction 50                   95

Taxing costs 20c, copy 10c, filing papers 20                                         50

       $2.40

(Paid)                                                                                  $4.75     /s/ John E. Colson, clk

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Tartar vs Tartar: Copy Opinion

1863 Jany 16th reversed

   "    Feby 5th opinion modified

1863 April 3rd filed /s/ J. E. Colson, clk

(above on cover sheet for following)

State of Kentucky}       January 16th

Court of Appeals }             1863

Mariah Tarter, Appellant vs Jacob Tarter: Appeal from Pulaski Circuit Court

Summary of opinion

Appeals court ruled that the lower court had erred refusing to allow Mariah the costs of her cross action against Jacob, including reasonable attorneys' fees. Four cases cited: Williams v. Monroe; Ballard v. Caperton ("...it was decided that the husband could escape this liability only by showing that the wife was in fault and that she had ample estate to pay the costs...It is proved in this case [Tarter v. Tarter -- jg] that the wife is very poor and is without estate of any sort."); Meyar v. Meyar; and Nikirk v. Nikirk.

"In the present case the cross petition of Mrs. Tartar in which she sought a divorce was dismissed.

Thereupon her Counsel moved the Court for an order on the Plaintiff to compel him to pay the costs including a reasonable allowance to them for their services in prosecuting her cross action for divorce.

"This motion was overturned, improperly as we think. On the authority of the cases cited, it is clear that they were entitled to such relief.

"There is not enough in the record to show that the Court abused its discretion in overruling her motion for an allowance pendente lite. ["while a lawsuit or action is pending" (Webster's) -- jg]

"But we think that the Court should in view of all the facts proved in the record have made an order for the maintenance of the child. Without going minutely into these facts it is sufficient to say that in the various family troubles which resulted in a final separation, the Appellee was by no means without fault. His wife is shown to have been subject to "spells of temporary derangement, resulting from her pregnancy, and the proof is, that during these periods, the treatment she received at the hands of her husband was not as kind or as tender as should have been, but rather the reverse. Whilst [she was] in that condition he procured a lawyer to prepare the written agreement for separation which the wife was induced to execute.

"It is proved moreover that the father of the Appellant, as well as herself, is very poor, and that she is physically unable to earn a support for herself and child by her own labor.

"The child should not be left to suffering and want in consequence of the misconduct of its

parents, especially as the father is shown to be amply able to support it.                                  

"The Court should, therefore, under the 7th Section of the Statute (2. Rev. Stat. p. 21)

have made an appropriate order for the care, custody, and maintenance of the infant child.

"For the errors mentioned the Judgment is reversed, and the cause remanded for further proceedings in conformity with this opinion."

A Copy attest. /s/Leslie Combs, C.C.A. [Clerk, Court of Appeals] by R.R. Bolling, D.C.

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Mariah Tarter vs. Jacob Tarter: notice

Mr. Jacob Tartar,

I shall on the 5th day of the present Sept. Term of the Pulaski Circuit Court move the judge of said court make an allowance for the support of my child & c. as directed by a judgment of the Court of Appeals in the case of yourself vs me pending in said court. Sept. 26, 1864.  /s/ Mariah Tartar

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[The following possibly incomplete document appears to be a list of deponents. In the upper lefthand corner of the visible part is "--> x 25", apparently in reference to the number of depositions given. (Some witnesses were deposed more than once.) The list appears as follows.

Joseph [sic] Taylor      1                                  Martha Tarter               2                                 

Frank Weddle              1                                  Rutha       "                   1

Docia Ann   "                1                                  Ann Duck                     2

Nancy Warner  1                                              Chas. Denham              2

Henrietta Weddle         2                                  Nancy Weddle             1

Arthur McDaniel           1                                  Newton Tarter             0

Helen Compton            2                                                                     23                     

J. M. Weddle               1                                                                 11.50

John Compton  3                                                                               3.25

N. (or W.) G. Cundiff   1                                                                 10.10

                                                                                            total    25.85 [sic]        

 [Note: This list of apparent deponents matches neither the actual deponents nor the summons issued. -- jg]

 Mariah Tartar ads Jacob Tartar

1860                Order to file notice Ex. on Pltff. 25c, filing 10c                          35

Order filing ans. & cross petition 25c, file 10c, o & c 15c          50

Order overruling motion 25c                                         25

1862                Order praying app. 25c, order granting app. 25c                       50

March              Order noting filing bill of Exceptions 25c, filing 10c                   35

Copy of transcript for Court of Appeals                               15.00

Order dismissing cross petition                                                 25

Order moving the court for allowance                                       25

Order overruling same                                                              25

Order moving this court to make allowance to her alimony 25c, order overruling motion 25c            50

1863                Order to file Opinion [of] Court of Appeals 25c, file 10c           35

March              Order to record same 25c, recording 1.00                             1.25

1864                Judgt 25c, copy 20c, recording same 50c                                 95

September        Entries on Judgt Book 60c, [one word] cost 30c                      90

Copy 20c, filing papers 30c                                                      50

Order app JM Weddle receives in this case                               25

Order that Pltff. pay costs of such                                             25

Clerks cost                          22.55

Cost of Depositions             24.85                     

        Total  47.40

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Jacob Tartar, Pltff. vs Mariah Tartar, Deft.: Judg't [Not explicitly dated]

This cause having been submitted to the Court for opinion and judgment in pursuance of the opinion of the Court of Appeals and the court being sufficiently advised adjudges that the Pltff. Jacob Tartar pay for the support of the child of Deft, the sum of thirty dollars for the amount due as aforesaid up to the first day of January 1865 and ten dollars for every three months during the year 1855 [sic], this first amount to be paid on or before the first day of November 1864 and this other amounts as they respectively fall due, and upon his failure so to do, an execution is awarded against him.

By argument of the parties, J. M. Weddle is appointed to collect and pay out the several amount herein adjudged for the support of said child. It is further adjudged that Pltff pay the cost of Deft in that expended for her defense & c., the attorneys' fees having been settled.

And the residue of this cause is continued.

To which opinion of the court the Deft. by her counsel exacts.

Recorded Book 21, p. 452.

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Jacob Tartar,

I shall on the 9th day of the present March term of the Pulaski Circuit Court move the Judge thereof to reinstate the suit of myself against you on the docket and also move for an additional allowance for the support of our child. Mar. 16, 1869.            /s/ Mariah Tartar

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