Coe v. Coe

• Decision Date: 02 March 1903
• Citation: 72 S.W. 707,98 Mo. App. 472
• Parties: COE v. COE.
• Court: Missouri Court of Appeals

72 S.W. 707

98 Mo. App. 472

COE v. COE.

Court of Appeals at Kansas City, Missouri.

March 2, 1903.

DIVORCE — EVIDENCE — SUFFICIENCY — APPEAL — CONFLICTING EVIDENCE.

1. Where, in divorce for cruelty, the testimony of plaintiff is corroborated by his witnesses in several particulars, but defendant contradicts all such testimony, a decree for defendant will not be disturbed.

2. The statute requires that before granting a divorce the court shall require proof of good conduct of plaintiff. In divorce for cruelty the evidence showed that about 11 months after

marriage, and after the birth of a child, plaintiff deserted his family, and remained in concealment until his whereabouts were disclosed by the commencement of suit. Held, that though defendant had used toward plaintiff the abusive language to which his witnesses testified, a decree in his favor would not be granted.

3. Where, on appeal, the notice and formal parts of a deposition taken in the cause are not preserved in the abstract, it must be presumed that the ruling of the trial court that the deposition was properly taken and certified was correct.

Appeal from circuit court, Lafayette county; Samuel Davis, Judge.

Suit by Marion Coe against Daisy Coe. From a decree for defendant, plaintiff appeals. Affirmed.

H. A. Wright, J. D. Dale, and William Aull, for appellant V. L. Drain, for respondent.

SMITH, P. J.

This is an action for divorce based upon the ground that defendant had offered plaintiff such indignities as to render his condition intolerable. The specified indignities charged in the petition consisted for the most part of abusive language used by defendant to plaintiff. The answer was a general denial.

At the trial the plaintiff testified in his own behalf to the truth of the charges alleged in his petition, while the defendant testified to the untruth of such charges. The plaintiff and defendant, since nothing appears to the contrary, must be presumed to be persons of equally fair veracity, and therefore the testimony of the defendant is entitled to be given quite as much credence as that of the plaintiff. And this being so, the testimony of the plaintiff and defendant as to the indignities may with propriety be eliminated from the consideration of that branch of the case, leaving it stand, in so far as the testimony tended to prove or disprove this issue, as if no testimony had been adduced in respect to it. Of course, if there be found any unimpeachable testimony tending to corroborate that of the plaintiff touching this issue, it must be considered in determining whether or not he has made out a prima facie case. The testimony given by some of his witnesses is corroborative of his in several material particulars, but the defendant in her testimony flatly contradicts that of these witnesses. The result is that the testimony of the plaintiff and that of his witnesses is contradicted by that of the defendant. In a case of this kind we feel it to be our duty to defer to the finding of the trial court.

But, even if the preponderance of the evidence was in favor of the...