Gabler v. Gabler
Decision Date | 10 December 1945 |
Docket Number | No. 4-7770.,4-7770. |
Citation | 190 S.W.2d 975 |
Parties | GABLER v. GABLER. |
Court | Arkansas Supreme Court |
Ernest Briner, of Benton, for appellant.
Jay M. Rowland, of Hot Springs, for appellee.
This is a divorce suit; and is the second attempt by the husband to obtain a divorce in Arkansas on the ground of three years' separation (seventh subdivision of Section 4381, Pope's Digest as amended by Act 20 of 1939). There is no occasion to recite the history and result of the first attempt; because we base our holding, here, on the lack of corroborative evidence in this case.
The present suit was filed in the Garland Chancery Court in June, 1944; and, as ground for divorce, the plaintiff (appellee here) alleged: "That he and the defendant were married in 1918 at Highland, Wisconsin, and that the plaintiff and defendant have been living separate and apart without cohabitation for more than three years next before the filing of this complaint." To this complaint, the wife (appellant here, and a resident of Indiana) filed answer, inter alia, denying three years' separation without cohabitation. She also sought suit money and alimony. The trial in the Garland Chancery Court resulted in a decree granting the husband a divorce and denying the wife's plea for alimony. This appeal challenges that decree.
I. Corroboration. In 20 C.J.S., p. 238, this is defined: "* * * in a legal sense as something which leads an impartial and reasonable mind to believe that material testimony is true; testimony of some substantial fact or circumstance independent of the statement of a witness."
In Sutherland v. Sutherland, 188 Ark. 955, 68 S.W.2d 1022, Chief Justice Johnson said:
In 17 Am.Juris. 338, in discussing the sufficiency of corroboration in divorce cases, it is stated: "It is difficult to lay down a general rule as to what corroboration is required in a divorce case. * * * The general rule is more significantly stated that where a particular fact or circumstance is vital to the complainant's case, some evidence of the same, in addition to the complainant's testimony, will be required. If an essential fact is difficult of proof, corroboration may be sufficient though weak. The corroboration must, of course, relate to material testimony and must be something of probative weight. Evidence which is hearsay or irrelevant is insufficient.
See also Annotation in 65 A.L.R. 169 on the character and sufficiency of evidence required to corroborate testimony of plaintiff in divorce suit.
With the foregoing principles in mind, we come to the evidence in this case. All of the husband's testimony on the ground of divorce is found in the following:
E. C. Shelton was the only corroborative witness; and his entire testimony is as follows:
When we take into consideration: (1) that the witness did not know the appellant; (2) that the witness did not know where the appellee resided; (3) that the witness admitted that the appellee...
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