Clopton v. Clopton

• Decision Date: 09 June 1902
• Docket Number: 6731
• Citation: 91 N.W. 46,11 N.D. 212
• Court: North Dakota Supreme Court

91 N.W. 46

11 N.D. 212

WILLIAM C. CLOPTON v. JOSEPHINE CLOPTON

No. 6731

Supreme Court of North Dakota

June 9, 1902

Appeal from District Court, Morton County; Winchester, J.

Action by William C. Clopton against Josephine Clopton. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Cochrane & Corliss and E. C. Rice, for appellant.

Newman Spalding & Stambaugh, for respondent.

OPINION

WALLIN, C. J.

This action was brought to obtain a divorce from the bonds of matrimony, and the plaintiff alleges extreme cruelty as a cause of action. On February 2, 1899, the court below entered judgment divorcing the parties. Defendant has appealed from the judgment, and in the statement of the case, which embraces all of the evidence offered and proceedings had at the trial, the defendant demands a retrial of all the issues in this court. The complaint alleges that plaintiff and the defendant intermarried on or about the 16th day of December 1896, in the state of New York, and that there are no children living as the issue of such marriage; and further alleges "that the plaintiff now is, and for a period of more than ninety days immediately preceding the commencement of this action has been, a resident of this state in good faith. " The plaintiff also alleges in general terms that defendant is a woman of violent and ungovernable temper; that ever since said marriage the defendant has abused and cruelly maltreated the plaintiff, and that on two occasions, to wit, on June 29, 1898, and on October 15, 1898, the defendant assailed and struck the plaintiff; and that defendant's cruel and inhuman treatment of the plaintiff has caused the plaintiff great mental suffering, and impaired plaintiff's health to such an extent that he has been rendered unfit to attend to his business affairs. The answer of the defendant, after admitting the averment of marriage, denies all the other allegations of the complaint. Defendant's answer was served and filed in the district court on the 26th day of January, 1899, one James E. Campbell, an attorney at law, residing at Mandan, N.D., appearing for defendant, and verifying her answer. The record shows that on the 2d day of February, 1899, the following stipulation in the action was filed with the clerk of the district court for Morton county: "It is hereby stipulated by and between the plaintiff and defendant that the above-entitled action be referred to Lydia W. Heuman to take the testimony therein, and that all the depositions taken in said action be submitted to the court; and it is further agreed that said cause be submitted to the court for determination and decision at the chambers of the judge of said court at Bismarck on February 2, 1899, at 2 o'clock p. m. Dated February 2, 1899. H. G. Voss, Attorney for Plaintiff. J. E. Campbell, Attorney for Defendant." On the same day the judge of the district court made an order of reference in the action as follows: "The above cause being an issue upon the complaint of the plaintiff and the answer of the defendant thereto, and it being agreed between the counsel for the plaintiff and the defendant, this cause being a proper case to be referred, on motion of H. G. Voss, Esq., attorney for the plaintiff, and by consent of the defendant's counsel, Lydia W. Heuman is hereby appointed referee to take the testimony in the above-entitled action on written questions and answers, and report the same to this court at her earliest convenience. W. H. Winchester, Judge of said District Court." It further appears that upon said 2d day of February, the referee made and filed her report, embracing the evidence taken by her, and that upon said day the trial court made, signed, and filed its findings of fact and conclusions of law in the action. Said findings recite, in effect, that the action was tried on February 2, 1899, and that Hoggatt, Caruthers, and H. G. Voss appeared at the trial in behalf of the plaintiff, and James E. Campbell appeared for the defendant. The first and second findings of fact are as follows: "(1) That the plaintiff now is, and ever since and for more than ninety days prior to the commencement of this action has been, a resident of the state in good faith. (2) That the plaintiff and defendant were married at New York City in the year 1896, on or about the 16th day of December, and now are, and ever since have been, husband and wife." The third finding of fact is to the effect that the charge of extreme cruelty as contained in the complaint is true, and that the specific acts of cruelty set out in the complaint were committed by the defendant, and that the cruel and inhuman treatment of the plaintiff by the defendant caused plaintiff great mental suffering, and resulted in producing sickness and nervous prostration, from which the plaintiff was and had been a great sufferer. The court, as a conclusion of law, found that the plaintiff was entitled to a divorce, and thereafter, by its order, directed the entry of a judgment in favor of the plaintiff. Whereupon and on February 2, 1899, a judgment was regularly entered divorcing the parties from the bonds of matrimony.

The evidence taken and reported to the court by the referee contained only the testimony of the plaintiff and a certain exhibit put in evidence in connection with the plaintiff's testimony, said exhibit consisting of a physician's certificate signed "J. C. Minor, M. D." In addition to the evidence reported by the referee, the plaintiff introduced the deposition of Dr. Austin W. Hollis, of New York City. The defendant offered no evidence, nor did her counsel, who was present at the trial, attempt to cross-examine the plaintiff, who testified orally in his own behalf before the referee. The appellant's counsel have assigned errors in this court briefly as follows: (1) The court erred in making its findings of fact and law without having the original complaint before the court in doing so. (2) The court erred in entering judgment, for the reason that no evidence was taken in open court, and the report of the referee did not embrace findings of fact or law. (3) The court erred in making its finding of fact, because the plaintiff's testimony was uncorroborated, (4) The court erred in making its findings of fact, because there was no corroboration of the marriage, or of the plaintiff's residence in this state in good faith. (5) The evidence did not show jurisdiction of the case in the district court.

With reference to the assignments of error relating to alleged irregularities of procedure in the case before the district court, it will suffice to say that any such irregularities if any exist, unless they go to matters of jurisdiction, furnish no ground whatever for reversing the judgment entered below in this class of cases. The action was tried to the court, under section 5630 of the Revised Codes of 1899, and the defendant has availed herself of the right conferred by that section to bring the case to this court for trial anew upon all the evidence offered at the trial. In this class of cases a new trial is had in this court upon the merits, and this court does not sit to correct mere irregularities or errors of law occurring in the court below. Nevertheless we have considered the assignments of error. The first, in matters of fact, seems to be sustained by the record. The original complaint and the summons were served on defendant in the state of New Jersey, and the record indicates that the papers had not been returned, and were not before the court at the trial. But there is no proof before this court, and the fact cannot be presumed, that the trial court proceeded to hear and determine the case without having either copies or the original pleadings before it. The contrary presumption must be indulged in the absence of evidence upon the point. Nor do we think that the fact that no testimony was taken in open court, or that the referee, in reporting the testimony, omitted to make findings of fact or law, constitute error or irregularity. There is no statute in this state requiring that the testimony in a divorce case shall be elicited in open court, but the statute does forbid the granting of a divorce upon any findings of a referee alone. Such findings must, when made, be supported by the evidence, and the court is required to rest its conclusions of fact upon the testimony. Section 2757, Rev. Codes 1899, reads as follows: "No divorce can be granted upon the default of the defendant or upon the uncorroborated statement, admission or testimony of the parties, or upon any statement or finding of fact made by a referee, but the court must, in addition to any statement or finding of the referee, require proof of the facts alleged." This section contemplates that a referee may make a statement of the facts or finding of facts, but, when the same is made, the court must, in addition thereto, require proof of the allegations constituting the cause of action. But this section nowhere undertakes to prescribe the mode or manner of taking the required proof, and hence the mode or manner of taking proof must be governed by other provisions of law. But counsel cite section 5455, Rev. Codes 1899, and contend that the reference to take and report the evidence was unlawful or unauthorized for the reason that the statute governing the matter of references makes no specific provision for any such reference, but requires all references which are made by consent to be for the purpose of trying either all or a part of the issues. It will be conceded that the statute does not, where a reference is had by consent, affirmatively confer authority to order a reference for the limited purpose of taking and reporting the testimony; but in divorce cases the procedure, except as modified by statute, is that...