Dunn v. Dunn

• Citation: 11 Mich. 284
• Court: Supreme Court of Michigan
• Decision Date: 20 May 1863
• Parties: Jane Dunn v. Jonathan F. Dunn. Jonathan F. Dunn v. Jane Dunn

11 Mich. 284

Jane Dunn v. Jonathan F. Dunn.

Jonathan F. Dunn v. Jane Dunn

Supreme Court of Michigan

May 20, 1863

Heard November 12, 1862; November 13, 1862; November 14, 1862,

Appeal in Chancery from Washtenaw Circuit.

Decree reversed, and bill and cross-bill dismissed.

A Felch, J. B. Gott and T. M. Cooley, for Jane Dunn.

O Hawkins, for Jonathan F. Dunn.

Campbell J. Martin, Ch. J. concurred. Manning, J. dissenting. Christiancy, J. dissenting.

OPINION

Campbell J.:

Upon the hearing of this cause originally, the Circuit Court, not being able to determine the facts from the evidence, directed an issue to try and determine whether the acts of adultery set up in the answer had been committed. An issue was framed by the judge and heard before a jury where he presided, and their verdict was returned with his approval, he certifying his minutes of the trial. He rendered a decree thereupon, based on the verdict, dismissing complainant's bill, and granting relief to defendant on his cross-bill. Objections were taken on the trial and are certified with the proceedings.

Being satisfied that the proceedings under the issue are entirely irregular, and the verdict one which should be set aside and disregarded, I feel constrained to give somewhat fully my reasons for this conclusion, as I deem the practice which has been followed too dangerous to be sanctioned as having any weight in an appellate court.

The grounds urged at the argument for giving to this verdict conclusive weight were, chiefly, that the verdict of a jury on issues from Chancery will not be set aside except upon the strongest reasons, and that, the judge having been satisfied with the verdict, his certificate of approval should prevail.

I do not understand either of these rules to govern us. While a verdict fairly given, without improper reception or rejection of evidence, is not to be lightly disregarded, yet it has no binding force on such issues. A new trial will be ordered upon much slighter grounds than in an ordinary action at law. And even without a new trial, the court may entirely disregard the verdict and make a decree against it, although it satisfied the judge who tried the case. The reason for this difference is, that in an action at law the jury are the sole judges of questions of fact, while in a court of equity there is no process by which the Chancellor can substitute the conscience or belief of a jury for his own; and he must find the facts on his own responsibility. An issue is not framed to relieve him of this responsibility, but to aid him, by a trial in open court, where witnesses are produced and examined orally more fully than they can be on paper. But it may easily happen that a verdict does not assist the court in coming to a conclusion. And there is no authority which I have discovered which renders it incumbent on any court of Chancery, or even proper, to follow a verdict which is not calculated to aid the conscience of the court, in solving questions of fact otherwise doubtful. Without going into cases in detail, I refer to East India Co. v. Bazett, 1 Jac. 91; O'Conner v. Cook, 8 Ves. 536; Cleeve v. Gascoigne, 1 Ambl. 323; Lord Faulconberg v. Peirce, 1 Ambl. 210; Locke v. Colman, 2 Myl. & Cr., 43; Bootle v. Blundell, 19 Ves. 494, 500; Blackburne v. Gregson, 1 Bro. C. C., 423; Armstrong v. Armstrong, 3 Myl. & K., 45. And the remarks of the Chancellor in Wood v. Wood, 2 Paige 109, illustrate with much force the danger of resting on anything but the most satisfactory verdict, upon clear and specific charges. The case before us combines many of the most dangerous features of those which have led to the action of the courts in the particular cases I have cited.

It appears that in several of these cases, and probably in all (for the practice appears to require it) the verdict was satisfactory to the judge. That the opinion of the judge should be regarded with much respect is undeniable; but, where the same judge who heard the jury trial acts as Chancellor, there is less foundation for any rule of approval in an appellate court, than where another judge presides at law. No appellate court, reviewing facts, can permit its own views to be determined by those of the court appealed from, or rest its conclusions on his, however highly it may and should esteem his judgment. The reason why, if at all, the satisfaction of the law judge with the verdict receives weight, is that he hears the jury trial without any knowledge before-hand of the evidence on the issues framed, or on the rest of the case. His opinion of the correctness of the verdict is therefore unbiased by any extraneous impressions; and, where judge and jury come to the same conclusion together, they are most likely to be right--although experience has shown, as in the cases cited--that the facts may not of necessity be as they find them. At least the verdict and certificate in such cases must usually be in accordance with, and based upon, nothing but the evidence given before the jury. But with the Chancery judge it is otherwise. He can not properly award an issue until he has been unable to form a satisfactory conclusion on the hearing, upon some material facts, to which the issue must be legally confined. The jury have not the same evidence which he has considered. The testimony upon which they make up their verdict is not the whole evidence which has finally satisfied his mind, and it would be difficult, if not impossible, for him, in approving their finding, to say that he acts entirely upon the testimony produced before them. His previous impressions can not be shaken off.

I think, therefore, that there is no foundation for any rule which would give to the verdict of a jury, so approved, any conclusive effect which would justify an appellate court in following it, unless "the information collected before the jury, together with that which appears on the record, is sufficient to enable it to proceed satisfactorily:" 2 Dan. Ch. Pr., 1306; Bootle v. Blundell, 19 Ves. 500.

As an issue can only be granted at the hearing as a general thing, and as this issue was so awarded, it is manifest that it must be confined, not only to facts put in issue by the pleadings, but to facts concerning which some testimony has previously been introduced and read at the hearing. No question of doubt could arise upon any fact not sworn to by some one. As the principal errors claimed to have been committed on the trial are connected with the admission of improper testimony, it becomes material to understand the position of the case when this issue was ordered.

Complainant's bill was based on cruel treatment, and also on a neglect to provide for her support. The chief items of accusation were cruel language, endeavors to get rid of complainant, unfounded accusations against her, and a refusal to take her back from her father's house, where she had gone on a visit with defendant's consent, and threats of advertising her to prevent her receiving credit. There were also charges that she had been put in personal fear. The bill having been taken as confessed, defendant was allowed, upon affidavit of excuse and merits, to put in an answer accompanying the affidavit, whereby he denied these charges, and averred his constant and continued readiness and desire to receive her back into his house. This answer was filed February 17th, 1859. In March the bill was amended by inserting charges of extreme cruelty, and refusal to provide for complainant--apparently to supply a supposed formal omission. On May 14th and June 7th, defendant made oath that he had recently, and since his answer, and not until early in April, 1859, discovered, and was able to prove, that complainant had committed adultery with one James Vosburgh, in January and February, 1858, and with Halsted Douglass in June, 1858; and that he could prove the former by Eva Langton, and the latter by Jane Johnson, Thomas Larry, Abram Brimenstall and Michael Lipe; and that complainant and Douglass had confessed the said adultery to him. June 18th, 1859, defendant was permitted, on these affidavits, to file a supplemental answer, which was filed on the 22d, whereby, after reaffirming his former denials, and his willingness to treat complainant as his wife up to the time of filing his former answer, he set up the same acts mentioned in his affidavit. To this a replication was filed, and testimony was taken on both sides. December 30th, 1850, defendant filed a cross-bill, charging acts of adultery with Halstead S. Douglass on the 20th of June, 1858, on or about the 28th and 29th of June, in the month of May, and during defendant's absence from home in April. Also in the fall of 1857, and in December, 1857, and January, 1858, with Vosburgh. The evidence read at the hearing for complainant, so far as it tended to show acts of adultery, consisted of the testimony of Jane Johnson to acts in June, 1858, and of Ann Teal to an act in May, 1858, with Douglass, and of Eva Langton to conduct with James Vosburgh at a time not specified, but some time in the winter of 1857-8. This bill also set up desertion.

The court on the hearing ordered an issue to try the charges of adultery set up in the answer. This order would not embrace the act testified to by Ann Teal, but, as she was required to be produced before the jury, the omission was doubtless accidental. But there was no possible foundation for any issue upon any other charges than those referred to by these three witnesses.

In drawing up the issue, which was done by the court--the parties not agreeing--the charges of misconduct with Douglass were embraced in one count, covering December, 1857, January April, May and June, 1858; and the autumn of 1857, specifying no part of any month, and no...