27 Ind. App. 560 | Ind. Ct. App. | 1901
— Appellee had judgment in the Hendricks Circuit Court for- a divorce, $3,500 alimony, and the absolute custody of the infant daughter of the parties.
The first point made is that “the evidence is not in the record”. By legislative assistance the difficulties of the subject have happily been minimized. A volume of 800 pages of typewritten manuscript bearing indications of being a longhand report of the evidence taken in this case comes to this court. It contains the formal parts of a bill of exceptions. It is shown to' have been presented to' and signed by the judge within the time limited and to' have been thereafter filed in the clerk’s office. It is incorporated in the transcript and certified by the clerk as the. original bill; it is therefore before the court. Hanger v. Benua, 153 Ind. 642; Tombaugh v. Grogg, 156 Ind. 355.
The complaint avers that the parties were married Descember 5, 1895, and lived together until February 6, 1899. That they have one child, then eighteen months old. It further charges appellant with cruel and inhuman treatment continuing over their entire married life, setting out a number of specific instances, which need not be repeated. Upon the trial evidence was given by appellee supporting ber complaint. Appellant denied every charge made against him. It is not claimed that the judgment is not supported by evidence, but it is earnestly argued that tire evidence shows without conflict that the cruelty complained of was condoned. The issue was made by a general denial to the complaint. Appellee meets the proposition by the further one that condonement is a special defense and must be specially pleaded. This is the holding of Lewis v. Lewis, 9 Ind. 105, and must be taken as expressive of the law. The ease is approved in Sullivan v. Sullivan, 34 Ind. 368, 310, and, upon principle, no reason is known why the husband, guilty of adultery or cruel and inhuman treatment,
Appellant insists that the averments of the complaint bring him within the exception. They are not so construed. They show the continued course of ill treatment, and, of necessity, forbearance upon the wife’s part during the time, but condonation is not averred. The State is the third party to every divorce suit, and is represented by the judge. He is of course not bound by the pleadings, but may examine witnesses as to recrimination, collusion, or condonation, and dispose of the case as the interest of the State requires. 9 Am. & Eng. Ency. of Law (2nd ed.), 729, and authorities cited. In view of the earnestness of the counsel and the importance of the ease to the parties, the evidence has been carefully examined, and, under proper pleadings, we should be compelled to hold that it is not sufficient to establish the defense. It is not to the advantage of either party, or any other person, that it be reviewed.
Appellant filed at the proper time his motion for a new trial, setting out 101 reason's, exclusive of subdivisions thereof. The motion was overruled, and such ruling is assigned as error.
The action of the court in permitting appellee to- testify that one night when ill she got out of bed and crawled across the sitting-room to- the porch, procured a drink of. water, returned to the bed the same way, became “worse”, could hardly get her breath, “finally waked him up”, and was thereafter alarmingly ill, two doctors being called to attend her, is the first reason for a new trial discussed. One of the charges of cruelty was based upon appellant’s alleged indifference to and abuse of appellee when in poor health.
The next seven reasons for a new trial discussed relate to the sustaining of objections to questions asked appellee on cross-examination. The first of these questions was: “Dave had provided for you tolerable liberally.” Further inquiries were directed to the kind and amount of furniture and carpets, etc., purchased after the parties were married. The complaint did not aver failure to provide. The charge was made that appellant refused during his wife’s pregnancy to buy for her certain delicacies she then craved. The questions excluded are not directed to the specific fact previously testified to' by the witness, and while the court might without error have permitted them to be answered there was no abuse of discretion in excluding them. Appellee was further asked upon cross-examination a number of questions as to whether her dissatisfaction was not due to property conveyances made after the marriage, by her hus^ band’s parents, and as to expressions made by her father and mother to her relative to such conveyances. The latter class of qtrestions were irrelevant; those seeking to develop dissatisfaction with the conveyances should have been allowed, directed as they were to relations existing between the parties; their exclusion does not constitute reversible error, for the reason that, assuming the truth to be as indicated, it does not follow but that the other grounds of disagreement alleged also existed. The statements attributed to the witness by the questions do not contradict the facts otherwise detailed by her.
Appellee was asked upon cross-examination relative to heir husband having taken her on a pleasure trip to Atlantic
The forty-first reason for a new trial is based upon the exclusion of evidence offered by appellant during the examination of I. W. Brindel. The record relating thereto is as follows: “Q. State whether or not you are acquainted with the general reputation of Mr. Breedlove, in the community where he lives, for morality. Counsel for plaintiff object for the reason the evidence sought by the question does not prove or tend to prove or disprove any issue tendered by the pleadings in this case. Objection sustained. To which ruling of the court the defendant at the time then and there excepted. Counsel for defendant offers to' prove in answer to the question that the witness is acquainted with the general reputation of the defendant for morality in the neighborhood in which he lives.” Appellant insists that the question is not presented in this record, for the reason that the offer to prove came too late. The point involved is one of universal interest to litigants and lawyers in the State. •
The rule relative to the making of such offers was laid down by the Supreme Court in an apparently well considered case as follows: “If the evidence which the appellants desired to introduce rested in parol, then the witness from whom the proof was to come should have been placed upon the stand, and a question propounded, and if objected to, and the objection sustained, then an offer should have been made as to what the witness would state in answer to the question. This would have properly presented the question in the record.” Smith v. Gorham, 119 Ind. 436, 439. This case has not been overruled. It is adopted by the distinguished author of a standard work on procedure as expressive of the law, and cited as in apparent harmony with the
It may be premised that the reason it is essential to show in the record what answer the witness will make is that the court to which the appeal is taken may be enabled to determine whether the party offering it was injured by its exclusion. Robinson Machine Works v. Chandler, 56 Ind. 575, 582; Lewis v. Lewis, 30 Ind. 257, 258; Toledo, etc., R. Co. v. Goddard, 25 Ind. 185, 191; Jordan v. D’Heur, 71 Ind. 199, 207. So far as this court is concerned, it can not be material as to what portion of the record the offer appears in. It might be shown by a separate bill of exceptions. The force of the tendered evidence depends upon what it is, and not the time of its presentation. It is not, therefore, necessary for the protection of the appellate tribunal that the offer be made at any precise time. It would not be correct, however, to say that the offer to prove is made only for the enlightenment of the court to which the appeal is taken. It is due the trial court that an offer should be made, and it is a matter of fairness to the trial judge that the higher court insist that the offer should be timely. “Where a party may wish to avail himself, in this court, of an alleged error of the court below, in the exclusion of offered evidence, it is due to both the courts that the record should show, clearly and explicitly, and without any necessity for inference or surmise, what evidence was offered and excluded, and what facts it was intended to establish thereby.” Mitchell v. Chambers, 55 Ind. 289, 295.
It follows that when the record shows that the offered proof was exhibited to the trial judge in such manner as furnished to him a pledge of present ability and sincerity,
When rules are applied otherwise than with regard to their reason, the result is an artificial standard not possibly productive of any good and surely an obstruction to the administration of justice between men according to' their deserts. Rules of practice in the courts are matters of expediency and convenience; there is nothing more of them. The record in this case shows: (1) A question; (2) an objection; (3) a ruling and an exception thereto; (4) an offer to prove. The principal fact in this chain of events is the ruling of the court. The question, the objection, and the offer are contemporaneous acts; they belong to the transaction. The order of the events may be transformed without changing the thing itself (the ruling). Suppose it reversed: (1) An offer to prove; (2) a question; (3) an objection; (4) a ruling and exception. Taken together we have again the single transaction. The circumstances and facts connected with the main fact serve to illustrate its character and are parts of it.
The question and the offer unfold the nature and quality of the ruling harmonizing it with themselves and forming with it one transaction. If this is a correct statement, it follows that the principle declared in Cunder v. Tibbits, 153 Ind. 591, is not applicable to such a record as is now being considered. There is no break in the continuity of the events enumerated, so far as is shown. It would be a strange doctrine to declare that one part of a transaction took place after the transaction itself. The word after, as used by the Supreme Court., was evidently not intended to. apply to such a case. That it has ever been so applied is no doubt due to
The alternative is to make a formal offer to prove whenever an objection is indicated. It might become a race between judge and lawyer to see who could speak first, in which event an interesting spectacle would be presented. To make formal offers in every instance is impracticable, and not consistent with due progress in the trial of causes. Until the judge has expressed himself no one can know whether an offer to prove would, or should not, be made. The writer has been unable to recall a single instance where the formal offer was made before the ruling of the court was announced or indicated. If a different practice pre
Deal v. State, 140 Ind. 354, seems to be the first of a number of cases involving this question, and recently decided by the Supreme Court. It is the principal authority cited in Gunder v. Tibbits, 153 Ind. 591. It was expressly based upon Judy v. Citizen, 101 Ind. 18, from the opinion in which the following quotation was made: “A bill of exceptions in the record recites, that at the proper time the defendant Introduced upon the witness stand one Benjamin Judy, the defendant, a competent witness, and by him offered to prove the following facts: (1) That the defendant was the owner in fee of the premises in controversy.’ This is followed by six additional propositions, which the bill states the defendant offered to.prove by the witness. This is followed by like propositions made with respect to his other witnesses. These offers were, on objection made by the plaintiff, rejected by the court, and in this it is claimed the court erred. It does not appear that any questions were propounded to either of the witnesses, nor is there any statement of the particular facts which it is claimed either of
The presumption is that the general reputation of every person is good, and evidence of good reputation where character is not in issue will not be received until evidence of bad reputation has 'been given. 3 Rice on Ev. §228. No attack upon the general reputation of appellant has been made. The only authority cited is Dubois v. Johnson, 96 Ind. 6, in which evidence of the good character of a third party, in whose family an infant child was living, was admitted as being proper to inform the court what his influence upon her would likely be. Where the court has full information as to wliat the disposition and habits of a father are, as shown by his family relations, evidence of his general reputation would not affect its knowledge of his fitness to have the custody of an infant child, and there was therefore no error in the ruling complained of. There might be cases where such evidence would be necessary.
Motions were made to modify the judgment both as to the custody of the infant daughter, Dorothy, and as to the amount of alimony and its manner of payment.
Appellant is one of two children; he was twenty-nine years of age at the time of the trial, with an expectáncy of thirty-five years; he was the owner of an estate for his own life, in 390 acres, of land worth $40 per acre, with an annual rental value of $2.50 per acre, and subject to an estate for the lives of his father and mother, whose joint expectancy is thirteen years. The remainder in this real estate has been deeded by the grandparents to the children of appellant, he having at this time but the one. Appellant is an able-bodied man, well educated, and in good health, and possessing earning ability. His parents are well-to-do. He is one of two children. The appellee is not in the best of health, and was not shown to have any property. His conduct towards her has not been good. This litigation has been long continued. The position held by the parties in society, and their habits of life, as shown by the evidence, tend to- demand a liberal allowance. The rule relative to judgments for alimony is quite well settled. A very broad discretion is given to the trial court, and an abuse of that discretion must be very clear indeed before its exercise will be interfered with. Gussman v. Gussman, 140 Ind. 433, 436. The amount awarded in this ease is not so. large as to indicate such abuse. It will therefore stand as rendered. The wife was the proper person to have the custody of the child. In view of its age, sex, and the surroundings of the parties, no other order could
The cause will be remanded, with instructions to modify the order relative to the custody of the child, Dorothy, in this, that she be allowed to visit her father at the home of his parents, or at such other place as the court shall deem proper, at such times and under such restrictions as the court shall from time to time fix and impose; and that said order be further modified as to allow appellant to visit his child at such times and places and under such restrictions as the court may direct. It is ordered that the costs of this appeal be taxed equally to the parties, to appellant and appellee.
Thus modified, the judgment is affirmed.