Lakson v. Lakson

• Decision Date: 07 February 1928
• Citation: 124 Or. 219,263 P. 891
• Parties: LAKSON v. LAKSON.
• Court: Oregon Supreme Court

263 P. 891

124 Or. 219

LAKSON v. LAKSON.

Supreme Court of Oregon

February 7, 1928

Department 2.

Appeal from Circuit Court, Multnomah County; Ashby C. Dickson Judge.

Suit by May Lakson against John Lakson.From a decree for defendantplaintiff appeals.Decree reversed, and cause remanded, with directions.

Harry G. Hoy, of Portland (Edw. J. Shinners, of Portland, on the brief), for appellant.

Elton Watkins, of Portland, for respondent.

RAND C.J.

This is a suit in which both plaintiff and defendant are seeking to obtain a divorce.During the trial, after plaintiff had rested her case and while defendant was introducing testimony in his own behalf, the trial court, without giving plaintiff any opportunity to rebut the evidence offered by defendant made the following announcement:

"I don't think I care to hear any more evidence.I am ready to decide it right now.The defendant and cross-complainant will be awarded a decree of divorce, and, further, the court holds that he is the sole owner of the property asked for in the complaint, and the plaintiff will be restored to her former name.The defendant will be required to pay the costs to date and additional attorney's fees of $25.These people have been foolish in their marriage and there is no use of the thing going any farther."

Thereupon defendant paid said sums, and a decree was then entered, awarding a divorce to defendant, and requiring plaintiff to quitclaim to defendant any interest she might have in defendant's real property, and providing that, upon plaintiff's failure to execute and deliver such deed within ten days from the date of the decree, the decree should stand in lieu of the deed and operate to vest in defendant the absolute and unconditional title to said real property.Subsequently, on motion of plaintiff for an order to vacate and set aside the decree and to permit plaintiff to introduce rebuttal testimony, the court held that the decree would be vacated and plaintiff permitted to introduce rebuttal testimony on condition that she should bear all of the expense thereof and that her testimony should be confined to rebuttal testimony only.Upon her refusal to comply with such conditions, the motion was denied, and said decree was confirmed, and plaintiff appealed.

In Salisbury v. Goddard,79 Or. 593, 156 P. 261, this court, speaking through Mr. Chief Justice Moore, said:

"* * * A sense of fairness will prompt a court so to regulate the trial of a cause as to afford to each party a reasonable time and proper opportunity to present his side of the case for consideration."

While the evidence offered by plaintiff was not, as we shall show sufficient to entitle her to a divorce, yet she had the right to controvert the evidence offered by the defendant, and she was deprived of that right by the unwarranted action of the trial judge, who, by his order, deprived her of the opportunity to deny the truth of any of the charges which the defendant had made against her.The defendant contends, however, that, since no showing was made by plaintiff of what testimony she would have offered if she had been permitted to proceed with the trial, the case comes within the rule that, where an objection is made to a question propounded to a witness while upon the witness stand and the objection is sustained, error cannot be predicated thereon unless the evidence which the witness would have given if he had been permitted to testify is shown by the record.That rule applies only where proof of a fact is excluded because of some supposed legal objection to its admissibility, which objection cannot be determined without knowledge of the particular fact which the witness would have sworn to and it has no application to the exclusion of rebuttal or any other testimony which is excluded not because of its supposed inadmissibility but because of the refusal of the court to permit one or more of the parties to introduce testimony in support of some material issue in the case.Nor did the facts of this case bring it within the rule provided by section 856, Or. L., which gives to the court...