Hulett v. Hulett

• Decision Date: 22 December 1928
• Docket Number: 27331
• Citation: 119 So. 581,152 Miss. 476
• Court: Mississippi Supreme Court
• Parties: HULETT v. HULETT. [*]

119 So. 581

152 Miss. 476

HULETT v. HULETT. ^[*]

No. 27331

Supreme Court of Mississippi

December 22, 1928

(Division B.)

1. DIVORCE. Permitting third persons named as co-respondents in divorce suit, charging adultery, to intervene and have answers read on trial held erroneous; only parties to divorce suit have any rights in such litigation.

Third parties who may be named as co-respondents in a bill for divorce, charging adultery, have no right to intervene in the said suit for the purpose of filing answers and making defense to the suit, unless the statutes specifically confer such right, and no statute of this state confers such right. It is therefore error for the court to permit such intervention and have the answers read on the trial of the divorce suit. Only parties to the divorce suit have any rights in such litigation.

2 DIVORCE. Complainant in divorce suit had right after cross-bill seeking divorce for cruelty in making charges to testify as to sources of information; filing of divorce suit charging wife with adultery pursuant to information amounting to probable cause does not constitute "cruel and inhuman treatment."

Where a complainant files a bill for divorce, setting up adultery and cruel and inhuman treatment as grounds therefor, and the wife files a cross-bill, seeking a divorce in her own right, on the ground of cruelty in making the charges in the bill, it is permissible for the complainant to testify as to the sources of his information, and the nature and character of it, and of the persons who furnish the information; and to deny such right to testify is error. Where a person has information amounting to probable cause for believing that his wife has committed adultery, the filing of a suit charging such act does not constitute "cruel and inhuman treatment" within the meaning of the law, even though the proof might not establish such charges to the satisfaction of the chancellor.

3 DIVORCE. Evidence tending to prove adulterous disposition is admissible in divorce case wherein adultery was charged opportunity to satisfy adulterous disposition is admissible as tending to prove adultery charged as ground for divorce testimony that married woman stated she could see man on certain night when her husband would be away held erroneously excluded; bill of Particulars omitting testimony tending to show adulterous disposition of defendant in divorce action could be amended to permit introduction of such evidence.

In a divorce case where adultery is charged as a ground for divorce, evidence which tends to prove an adulterous disposition is admissible, and an opportunity to satisfy such disposition is admissible as tending to prove the offense charged; and it is error to exclude testimony showing that the defendant, a married woman, stated to a man that her husband would be away from home on a given night, and that she could see him at her home on such night; and if a bill of particulars has been furnished, omitting testimony mentioned above, and there is no showing that allowing an amendment to the bill of particulars would unduly delay the trial, or that the witness was not obtainable, to deny such conversation the court should allow the amendment to the bill of particulars, and receive such evidence.

4. DIVORCE. Adultery as charged in divorce action may be established by circumstantial evidence; on charge of adultery, all facts tending to elucidate transaction or establish hypothesis sought are admissible; evidence of incidents showing adulterous disposition of defendant in divorce action is relevant.

Adultery may be established by circumstantial evidence, and where it is sought to be so established, all facts tending to elucidate the transaction, and to establish the hypothesis sought, should be admitted. Evidence of incidents showing the adulterous disposition of defendant, though not connected in time or place with the alleged act of adultery, is relevant to add to the probability of such party so charged having committed the act relied on.

5. DIVORCE. Testimony of witness, overhearing conversation tending to show immoral relations, that in his best judgment defendant in divorce action was woman involved, was erroneously excluded.

In a bill for divorce, charging adultery, evidence offered that a hotel clerk overheard a conversation between a woman outside the hotel and a guest in the hotel of an unusual nature, tending to show immoral relations between the man and the woman, in which conversation an engagement was made by the woman to meet the man at a given corner within a few minutes, the man later going out, followed by the clerk to the place where he meets the woman, and gets in an automobile with her, when the clerk sees the woman and gets the car number and obtains from the sheriff the information that the automobile belongs to the husband of the woman in question, and is used by her, said witness to testify that in his best judgment the defendant was the woman he saw on such occasion, such evidence should be admitted.

6. DIVORCE. Testimony that married woman stated that she desired appointment with witness at her home when husband was away was admissible to divorce action to show adulterous disposition.

Where a complainant in such divorce suit offered a witness to prove a conversation between the witness and the defendant in the suit, in which the witness states that defendant desired an appointment with him some time at her home when her husband would be away, that she "desired to see what there was to him anyway," and that during the conversation a third party came up (one of the co-respondents in the divorce suit) and was introduced to such witness by the defendant in said suit, and later in the same conversation remarked to such witness, "He is my sweetie, I know where he is most all the time"---such testimony is admissible as tending to show an adulterous disposition.

7. DIVORCE. Refusal to permit witness to state as to whether defendant in divorce action was woman that he saw meet man on secluded highway held erroneous.

Where the complainant introduces a witness to prove that the defendant in a divorce suit, and a man, met on a secluded highway, got out of the car, and went into the woods, and, upon being asked if the defendant was the woman in question, answered that he would not like to be positive, and was then asked his best judgment as to whether she was the woman in question, the court should have permitted the question to be answered. The witness does not have to be positive beyond a reasonable doubt, and is entitled to give his best judgment as to the identity of the person.

8. WITNESSES. Refusal to permit question to complainant's witness, in divorce suit for adultery, as to previous inconsistent statements made by him after negative answer to question as to seeing defendant and man on the ground, held erroneous.

Where such witness was also asked if he did not see the persons referred to on the ground, and answered, "No," and was then asked by the complainant if he did not state to complainant on a previous occasion that he had so seen them, and if he had not stated that the defendant was the woman, and if he did not afterwards learn the identity of the man, and had so stated to the complainant, objection was made to this question, which objection was sustained. It was error to sustain such objection; the question should have been answered.

9. WITNESSES. Party introducing witness failing to give testimony as previously stated may introduce proof that witness made statement.

Where a witness stated to a party to the suit a fact material to the issue, causing the party to rely upon him and to place him upon the stand, and on the stand refuses to give the testimony previously stated to the party, and which the party expected him to give, the party introducing him may introduce proof that he did make this statement, and that the party was surprised at the failure of the witness to so testify on the stand. This is especially true where a cross-bill has been filed, charging cruelty, based upon the allegations filed upon information deemed reliable by complainant.

10. EVIDENCE. Circumstances in regard to circumstantial evidence must be proven with reasonable certainty; circumstances must be so proven that conclusion sought to be established follows logically from facts; circumstantial evidence is insufficient if two or more reasonable theories can be drawn from facts proven; number of facts, each insufficient in itself to sustain charge, may when taken together be sufficient.

It is a rule in regard to circumstantial evidence that the circumstances must be proven with reasonable certainty, and the circumstances so proven must be such that the conclusion sought to be established follows logically from the facts; and if there are two or more reasonable theories drawn from the facts proven, the proof would be insufficient, because, to invest mere circumstantial evidence with such force. it must not only be logical, and tend to prove the facts charged, but must be inconsistent with a reasonable theory of innocence; but this applies to the evidence as a whole, and does not apply to each particular circumstance tending to prove the issue. A number of facts, each insufficient in itself to sustain a charge, may, when taken together, be so strong as to lead the mind safely to the conclusion sought to be established.

11. DIVORCE. Divorce decree without specific finding as to whether bill or cross-bill was sustained will be attributed to state of facts shown by evidence.

Where a bill for divorce is filed, alleging cruel and inhuman treatment, and a cross-bill is filed by the defendant seeking divorce on the ground of cruel and inhuman treatment, and the chancellor...