Warner v. Warner
| Decision Date | 30 July 1897 |
| Citation | 44 A. 908,69 N.H. 137 |
| Parties | WARNER v. WARNER. |
| Court | New Hampshire Supreme Court |
Exceptions from Rockingham county.
Libel for divorce by James E. Warner against Mary I. Warner on the ground of adultery. On a judgment in favor of defendant, plaintiff excepts. Exceptions overruled.
Subject to the plaintiff's exception, the defendant was permitted to introduce testimony relating to her general reputation for virtue and chastity.
Eastman, Young & O'Neill, for plaintiff.
J. Warren Towle and John S. H. Prink, for defendant.
CARPENTER, C. J. Libels for divorce are, and, until the legislature otherwise provides, must be, tried by the court. Const, art. 76 (now article 75); Sheafe v. Sheafe, 24 N.H. 564, 567. "The jurisdiction in cases of divorce a vinculo matrimonii is unknown to the common law, * * * and is exercised in modes unknown to the common law." Brown v. Brown, 37 N.H. 536, 537. In the trial the court has never been governed by strict rules of evidence or practice, and has always exercised a broad discretion, as well in the admission of evidence as in other respects. Sheafe v. Sheafe, 24 N.H. 564, 568. This, doubtless, is one reason for the fact that only two or three of our numerous reported cases relate to the competency of evidence. Although, by the common law, and until the act of 1857 (Laws 1857, c. 1952), a party to a civil action could not testify, the testimony of the parties in divorce cases was always received. Poor v. Poor, 8 N.H. 307, 310, 314; Quincy v. Quincy, 10 N.H. 272, 274-277; Smith v. Smith, 12 N.H. 80, 81; Kimball v. Kimball, 13 N.H. 222, 224, 225; Masten v. Masten, 15 N.H. 159, 161; Corson v. Corson, 44 N.H. 587, 588; Melvin v. Melvin, 58 N.H. 569, 571. The necessity for the testimony of the parties in order to secure the administration of justice between them was no greater than in many common-law actions. It warranted the judicial abrogation of the established rules of evidence no more in one case than in the other. The testimony was received not merely because it was necessary, as in many cases it was not, but on the ground that the court was not bound under the statute by the strict rules of evidence. The anomaly is otherwise unaccountable. So, although at common law evidence in support of the credibility of a witness is not competent until his reputation for truthfulness is attacked, yet in divorce cases it has been the uniform practice of the court not only to admit, but in some cases to require,...
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Carpenter v. Carpenter
...or practice, and has always exercised a broad discretion, as well in the admission of evidence as in other respects." Warner v. Warner, 69 N. H. 137, 138, 44 Atl. 908. In accordance with this principle, if for no other reason, the exception to the use made of the affidavits by the court mus......
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Milster v. Milster
...been ruled to be proper in other states. Graft v. Graft, 76 Ind. 136; Hilker v. Hilker, 153 Ind. 425, 431, 55 N. E. 81; Warner v. Warner, 69 N. H. 137, 44 Atl. 908. There are decisions in other jurisdictions against it. If it were not for Black v. Epstein, supra, we would readily follow the......
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Clough v. Clough
...was not according to common-law rules; the facts were found by the judges (see cases just cited); the parties testified (Warner v. Warner. 69 N. H. 137, 138, 44 Atl. 908; Melvin v. Melvin, 58 N. H. 569, 42 Am. Rep. 605; Corson v. Corson, 44 N. H. 587, 588), and the personal attendance of wi......
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Milster v. Milster
...discretion, limited, of course, but yet of more breadth, than he would exercise in an ordinary civil suit. And so it was said in Warner v. Warner, 69 N.H. 137, "The reception or the rejection of evidence of character in divorce cases is not legal error," We therefore rule that it was not re......