Bender v. Bender
| Decision Date | 06 March 1917 |
| Docket Number | No. 14702.,14702. |
| Citation | 193 S.W. 294 |
| Parties | BENDER v. BENDER. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.
"Not to be officially published."
Suit for divorce by Estell Bender against Joseph Bender, wherein defendant filed a cross-bill asking divorce. From a decree of divorce for plaintiff, and an order as to alimony, defendant appeals. Affirmed.
E. V. P. Schneiderhahn, Taylor R. Young, and E. C. Slevin, all of St. Louis, for appellant. Stern & Haberman, of St. Louis, for respondent.
The plaintiff sued defendant for divorce, and defendant, by way of cross-bill, in turn asked the same relief. Plaintiff charged the defendant with indignities such as to render her condition in life intolerable, and the defendant charged the plaintiff in like manner, and as a separate ground charged adultery. The case was tried twice below, the trial court setting aside its decree granting a divorce to plaintiff, and granted a second hearing on the ground of newly discovered testimony alleged as being sufficient to establish the charge of adultery. On the rehearing of the case the trial court dismissed the cross-bill of the defendant, and granted a decree of divorce to the plaintiff, with custody of the minor child, Joseph, together with alimony in the sum of $60 per month, from which judgment and order defendant has appealed.
At the trial the testimony of the parties was in sharpest conflict. Plaintiff adduced testimony tending to prove the allegations of her petition, and there was testimony produced by the defendant tending to prove the allegations of the general indignities alleged in his cross-bill. Plaintiff presented testimony denying the defendant's allegations, and defendant's testimony denies the wife's allegations. In fact the case presents most unusual features. However, we feel that these phases need not be mentioned, nor will we enter into a discussion of the testimony adduced herein. It is sufficient to say that we have carefully read the entire voluminous record, containing 500 pages, replete with nasty, sordid details of the vilest kind. To abstract the mass of facts contained therein would be impractical and serve no good purpose. And further, the character of the testimony in the main is such that we would not willingly spread it of record in an opinion of this court. But few records will illustrate as forcibly as this one the disadvantage that appellate judges are put to in determining questions of divorce, as compared with the trial judges. The record at every turn discloses the fact that many things which occurred during the progress of this trial below were impossible of notation in a printed record, and that the trial court had opportunities of judging the case and was far better qualified, by reason thereof, to pass upon and weigh the conflicting testimony therein than this court.
The trial court had the witnesses before it and was able to note the candor and frankness of each in testifying, and to note the willingness or the hesitation in answering questions; the readiness to volunteer matters that might appear favorable to one side or the other, or to attempt to hold back that which might prove prejudicial to the case of the party for whom they had been called as a witness. There are many things in addition — the tone of voice, the action of the eye, in fact the whole demeanor, and in this case even the question of the sobriety of one of the witnesses at the very time he was under oath and testified in the case, all of which is of course lost in the printed record. For these reasons the appellate courts are strongly inclined to defer to the findings of the trial courts in such cases. However, it is elementary that the appellate courts are not bound by the conclusions reached by the trial court, but will examine the evidence and determine whether the proper result has been reached.
A careful reading of the record discloses no error committed by the court in excluding relevant, competent, or material testimony offered in behalf of the defendant. Defendant lays considerable stress upon the fact that the trial court permitted the introduction of the transcript of the testimony of the witness Hogane, given at a former trial of the case. But an examination of the record shows that Attorney Young, while testifying as a witness for his client, the defendant below, respondent here, in one part of the case himself testified as regards Mr. Hogane:
Later on in the record when the attorney for plaintiff offered to read the testimony of said Hogane, given at a former trial, objection was made:
To continue reading
Request your trial
-
Drake v. Kansas City Public Service Co.
...given upon the former trial. Welp v. Bogy, 297 S.W. 604; State v. Riddle, 197 Mo. 287; Franklin v. Gummersell, 11 Mo.App. 314; Bender v. Bender, 193 S.W. 294; Krause v. D. U. Ry. Co., 170 Mich. 438, 136 434; Daniels v. Stock, 23 Colo.App. 529, 130 P. 1031. The motion for a new trial may not......
-
Welp v. Bogy
..."not found" (all of which the evidence discloses was done here) would satisfy the requirements. [State v. Riddle, supra; Bender v. Bender, 193 S.W. 294.] The Riddle case holds, and properly so, that the question of the sufficiency of the proof as to the showing of due diligence is confided ......
-
Collins v. Leahy
... ... Assn., 134 ... Mo. 204, 27 S.W. 436; Mayne v. Kansas City Rys. Co., ... 287 Mo. 245, 229 S.W. 386; Bender v. Bender, 193 ... S.W. 294. (3) The city ordinance was properly admitted in ... evidence, though not pleaded, because it was not offered as a ... ...
-
Andris v. Andris
... ... Mo.App. 350; Wald v. Wald, 119 Mo.App. 341; ... Methudy v. Methudy, 238 S.W. 562; Hoecker v ... Hoecker, 222 S.W. 387; Bender v. Bender, 193 ... S.W. 294; Yeager v. Yeager, 185 S.W. 743. (3) The ... trial court properly excluded evidence of plaintiff's ... habit of ... ...