Coe v. Coe

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

72 S.W. 707

98 Mo.App. 472

MARION COE, Appellant, v. DAISY COE, Respondent

Court of Appeals of Missouri, Kansas City

March 2, 1903

Appeal from Lafayette Circuit Court.--Hon. Samuel Davis, Judge.

AFFIRMED.

Judgment affirmed.

H. A Wright, J. D. Dale and William Aull, for appellant.

(1) The appellate court may examine into and weigh the evidence in divorce cases for the purpose of forming its own judgment not being bound by the finding of facts made by the trial judge. Torlotting v. Torlotting, 82 Mo.App. 192; Morris v. Morris, 60 Mo.App. 86; Davis v Davis, 60 Mo.App. 545; Green v. Green, 22 Mo.App. 494; Endsley v. Endsley, 89 Mo.App. 597; Jennings v. Jennings, 85 Mo.App. 290. The entire testimony in the case excepting that of the parties, Carmichael, Foulds, and Barnett, was in form of depositions. (2) Appellant is clearly entitled to a divorce under the evidence, and it was the duty of the court to render a decree granting the divorce. Such decree does not come as a matter of grace. The court has no discretionary right when the essential facts are established by the evidence. Ulrey v. Ulrey, 80 Mo.App. 48; Kilpatrick v. Kilpatrick, 80 Mo.App. 70; Descholdt v. Descholdt, 50 Mo.App. 102; Morris v. Morris, 60 Mo.App. 86; Lynch v. Lynch, 87 Mo.App. 32; Viertel v. Viertel, 86 Mo.App. 496; Shirk v. Shirk, 75 Mo. 582. (3) Appellant had the right lawfully to claim civil treatment and kindness, too, from his wife. Tripp v. Tripp, 68 Mo.App. 413; Lynch v. Lynch, 87 Mo.App. 36-7. (4) The indignities complained of by appellant consisted of unmerited, contemptuous treatments; acts and language towards him which manifested contempt for him; contumely, incivility and injury, accompanied with insult, and amounting to a species of cruelty to the mind. Respondent's conduct was ungentle and unwifely. Goodman v. Goodman, 80 Mo.App. 281; Lynch v. Lynch, 87 Mo.App. 36-7; Endsley v. Endsley, 89 Mo.App. 597; 9 Am. and Eng. Ency. Law (2 Ed.), pp. 812-13. (5) The court erred in suppressing the testimony of Martin Ralls. There was no question concerning notice of appearance of parties, but only that the certificate of the notary was not in accordance with the statue.

V. L. Drain, for respondent.

(1) That the appellate court may examine into the evidence before the trial court is conceded by respondent. But when there is simply a conflict of testimony, the appellate court will defer to the judgment of the lower court where the trial judge saw the parties, heard the testimony, and was possessed of all the facts and circumstances in the case. (2) Appellant is not entitled to a divorce under the evidence. The essential facts must be proven by a preponderance of the evidence to the satisfaction of an impartial court before the discretionary right of the court ceases in such cases. (3) Had no appearance been made by her the court would still have had ample authority to bring out the facts in the case, and doubtless the result would have been the same had the answer and testimony on behalf of defendant been excluded from the case. Appellant is not the innocent and injured party and therefore the judgment is right. Greisedeck v. Greisedeck, 56 Mo.App. 94; Webb v. Webb, 45 Mo.App. 229; Moore v. Moore, 41 Mo.App. 176; Owen v. Owen, 48 Mo.App. 208; Nichols v. Nichols, 39 Mo.App. 291. (4) The court did not err in suppressing the deposition of Martin Ralls. There is no proper certificate as the law requires. The notice appended to the deposition does not appear in appellant's abstract, and time and distance will prevent the insertion here, but the certificate of the notary is not such as to authorize its admission as evidence. It does not conform to the requirements of the statute. Section 2898, R. S. 1899.

SMITH, P. J. Ellison, J., concurs in result.

OPINION

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 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 affirmative of the issue as to the indignities, we should still not be inclined to find fault with the decree. It appears from the plaintiff's own testimony, that when he married the defendant he owned a 180-acre unincumbered farm besides horses, cattle, hogs, sheep and farm machinery. It is not disputed that he told his wife before their marriage that he was out of debt. It appears that eleven...