McClung v. McClung
| Decision Date | 09 April 1879 |
| Court | Michigan Supreme Court |
| Parties | Martha McClung v. Joseph McClung |
Submitted January 31, 1879
Appeal from Berrien. Submitted January 31. Decided April 9.
Decree affirmed with costs.
Edwards & Sherwood for complainant.
Franklin Muzzy, Edward Bacon and Spafford Tryon for defendant.
Mrs McClung filed her bill for divorce on the grounds of cruelty and adultery. The causes of trouble, so far as they appear in the proofs, are very closely connected, and arose chiefly from conduct of an improper character with two women named Taylor and Jadwin. The defense rests on either denials or explanations of the conduct complained of, and on the claim that defendant was wrongfully prevented from putting in his proofs. The last point requires consideration by itself.
The case was put at issue June 3d, 1876, and the time for taking testimony was enlarged by stipulation until some time in February, 1877. On the 10th of that month an order was made based on defendant's contempt in not paying alimony, whereby, among other things, proceedings on his part to take testimony were stayed till further order. Time was thereafter allowed complainant upon showing to take further proofs. They were finally closed in November, 1877, and the court refused to open them.
There is nothing to indicate that defendant was deprived of taking any testimony he intended to take before the original time had run out. His affidavits made on more than one occasion indicate that he did not intend to introduce testimony to controvert the complainant's proofs until some of her later witnesses had shown facts which seemed to him worthy of reply.
We find nothing which satisfies us that he had not the fullest opportunity of cross-examining complainant's witnesses, and it was in most cases exercised as fully as justice required, and more fully in some cases than propriety demanded.
As to his own proofs of which he claims to have been deprived, we do not think the theory set up is the correct one. Every person from the allegations in the issue made is supposed to understand that an attempt will be made on either hand to prove or disprove each important fact. It is expected that each party will proceed within the time fixed by the rules of practice to introduce such proofs as will make out his cause or defense. Under the English practice the whole testimony was closed before either party was at liberty to know what had been sworn to. After publication it was a very rare thing to open proofs so as to allow contradictory evidence to be put in, because of the danger of fabricating testimony for the occasion. Our practice prevents surprise by allowing open examinations. But it has never been customary to favor the practice of keeping back testimony on one side until proofs are concluded on the other. The court necessarily retains power to protect parties against surprise; but no one can be allowed to wait beyond the ordinary period for closing proofs, and then get leave to bring in his contradictory testimony without showing very clearly that justice requires it, and that he has not been at fault so far as to have lost his claim to favor. Thayer v. Swift, Walk. Ch. 384; Hamersly v. Lambert, 2 Johns. Ch. 432.
While it is undoubtedly competent, and often proper to open proofs generally and allow further testimony on both sides, yet under the old practice that was seldom if ever done, and the occasion for further proofs may affect one party, or one party may have special equities. It was not irregular to allow complainant to take proofs when such liberty was not extended to defendant. As to its propriety these considerations appear plainly: defendant pertinaciously and vexatiously refused to pay the alimony ordered by the court, and put complainant to inconvenience and offensive annoyance. She had not the means he was bound to give her of expediting her cause. On the other hand, defendant could at any time have taken his own proofs, and when he applied to the court for what was matter of favor and discretion, he was still in open contempt, and his affidavits were contradicted, and in some respects at least palpably false. We are not called on to consider whether the court can deprive a party of a right, in addition to the usual punishment for contempt. It is certain that no court is bound to extend any favors to persons who disregard its authority.
We think the cause was properly heard on the testimony.
The case made by the bill rests upon charges of cruelty involving misconduct with other women and adultery. The specific charges of adultery mention only the name of one Sarah Taylor. The...
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Spradling v. Spradling
...rule is a salutary one, and has been often applied by the courts. Casteel v. Casteel, 38 Ark. 477; Peel v. Peel. 50 Iowa 521; McClung v. McClung, 40 Mich. 493; Waters v. Waters, 49 Mo. 385; Zimmerman v. Zimmerman, 7 Mont. 114, 14 P. 665; Walker v. Walker, 82 N.Y. 260; Williams v. Williams, ......
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Spradling v. Spradling
...rule is a salutary one, and has been often applied by the courts. Casteel v. Casteel, 38 Ark. 477; Peel v. Peel, 50 Iowa, 521; McClung v. McClung, 40 Mich. 493; Waters Waters, 49 Mo. 385; Zimmerman v. Zimmerman, 7 Mont. 114, 14 P. 665; Walker v. Walker, 82 N.Y. 260; Williams v. Williams, 6 ......
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Heard v. Heard
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Waddingham v. Waddingham
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