Clark v. Clark, 48 Mo. App. 157

Clark v. Clark

48 Mo. App. 157 | Mo. Ct. App. | 1892

Gill, J.

Plaintiff sued the defendant for a divorce, basing his action on the ground that defendant offered to plaintiff such indignities as to render his *159condition intolerable. Although the plaintiff resided at Kansas City, the suit was brought at Independence, and notice given by publication in an Independence newspaper, it being alleged that defendant was a non-resident. Defendant did not appear; the trial judge heard the evidence produced by the plaintiff and denied the prayer of the petition, and from this judgment plaintiff has appealed.

On a stenographic report of plaintiff’s evidence, as it was submitted to the circuit court, we are asked to say that a case was made out by plaintiff, and that the court below erred in denying the prayer for a divorce. If the facts were as testified to by the plaintiff, then under the law he was entitled to a dissolution of the matrimonial bonds. But the judge trying the cause announced his decision on the ground that he did not credit the testimony produced. To his judgment in a case of this nature, we must largely defer. The witnesses were before the trial court; he had ample opportunity to and did witness their appearance and deportment on the stand, and, hence, was in a position to better determine whether or not the conduct of the parties was truthfully detailed. Judging from the manner and extent of the court’s cross-examination of the witnesses, there was apparently much in the case to excite suspicion. In these ex parte divorce cases, courts are justified in hold-the plaintiff to a satisfactory proof of the causes alleged. Only one side of the controversy is heard ; and it is the observation common to the triers of causes, that no correct and satisfactory conclusion can be reached until both sides of the controversy shall relate their story. The court passing upon the evidence in such cases is not required to believe and credit it. 2 Bishop on Mar. & Div., sec. 787. Because then there is no contradictory testimony by “word of mouth,” it does not follow that the judge shall believe the oral evidence adduced. There may be such circumstances and such appearances as to warrant a disbelief in the plaintiff’s story.

*160From a reading of this record alone, though deprived of a sight of the plaintiff, we see some things calculated to arouse a distrust in the merits of plaintiff’s case. He and his wife separated at Indianapolis, Indiana, just about a year prior to the institution of this suit. He came to Kansas City; where she went is not shown, nor does he satisfactorily account for his failure to learn of her whereabouts. He takes advantage of that provision of the statute to serve her with notice by publication. It would have been economy and attended with little trouble to have served her personally with a copy of his petition.. However, he had the right under the Statutes of this state (if she was a'non-resident) to give his wife notice by publication ; and with such notice the coui't had jurisdiction to hear and determine the cause, and settle the matrimonial status between the parties. Yet that the plaintiff adopted this means of notice rather than serve the wife with a copy of the petition tends naturally to impress the court that the plaintiff preferred a quiet, ex parte hearing, rather than a full disclosure, as might have resulted if the wife was in fact advised of the pending suit. More than this, plaintiff, though residing at Kansas City, brings his suit at Independence, and publishes the notice -of suit in a newspaper there. Why go to a neighboring town and make a pretense of notice such as this, except to avoid, rather than give advice to, the defendant %

We see no sufficient reason to disturb the judgment below ; it is, therefore, affirmed.

All concur.