26 S.W.2d 511 | Ky. Ct. App. | 1930
Affirming.
Ebb Colyer, the appellee, filed his petition against his wife, Loretta Colyer, the appellant, seeking a divorce on the statutory ground that she had been guilty of such lewd and lascivious behavior as to prove her to be unchaste. Appellant filed an answer and cross-petition. She denied the allegations of the petition, and alleged, as grounds for a divorce, that her husband had a confirmed habit of drunkenness, and that he had behaved towards her in such a cruel and inhuman manner as to show a settled aversion to her, or to destroy permanently her peace and happiness. She prayed for alimony in the sum of $2,000. The chancellor considered the record, and granted appellee a divorce, and denied appellant any relief.
The appellant contends that the chancellor should not have granted the divorce to appellee, and that she is deprived, therefore, of her right to recover alimony. No appeal can be taken to reverse a judgment granting a divorce. Section 950-1, Ky. Stats. But where the chancellor refuses to award alimony, this court has jurisdiction to pass on that question. Jones v. Jones,
It is urged by appellant that the chancellor erroneously entered a judgment granting a divorce to the husband because the provisions of section 2119, Ky. Stats., were not complied with. This section provides that two witnesses or one and strong corroborating circumstances shall be necessary to sustain the charge of adultery, or lewdness. It further provides that the credibility or good character of such witnesses must be personally known to the judge, or to the officer taking the deposition, who shall so certify, or it must be proved. It is insisted that the credibility or good character of the witnesses who testified to the improper conduct of the wife *754
in this case was not certified by the officer taking the deposition; that it was not proved and it was not personally known to the judge. The credibility or good character of the two witnesses who first testified was certified by the officer taking the depositions. Other witnesses who testified on the same point were without such a certificate of good character. Neither was there any proof on the question of character, and the chancellor made no statement as to his knowledge on that point, and the circumstances are not such as to show that he had any knowledge of the credibility or good character of these witnesses. In the case of Lewis v. Lewis,
She then restated the improvements that had been made in the house and added the sentence, "He said if you would come back he would let you handle all the money yourself and run things just like you wanted them."
The appeals of the husband to his wife asking that she return to him and his children fell on deaf ears. The chancellor doubtless gave weight to these letters in connection with the evidence of the two witnesses, whose good character had been certified. It is established, therefore, by the unquestioned evidence that appellant left the home of appellee; that prior to her leaving a man had been visiting her night and day and at times when the husband was away at work; that they left about the same time, he leaving his family and she leaving hers; that they had never returned; that she was living such a life as made her husband believe that the truth *756 should be concealed, and for that reason he was willing to give currency to a false report to the effect that she had been away in a hospital. The chancellor, therefore, was not wholly without proof to sustain his judgment.
If the testimony of the other witnesses may be considered, the cause of action alleged by the husband in his petition is abundantly established. No exceptions were filed to the depositions, as required by the provisions of section 586 of the Civil Code of Practice. Exceptions to depositions other than to the competency of the witnesses, or to the relevancy or competency of the testimony, shall not be regarded unless the exceptions are filed and noted on the record before the commencement of the trial and before or during the first term of the court after the filing of the depositions. It appears, therefore, that the depositions were read without any exceptions thereto. If appellant desired to call the attention of the court to the failure of the officer taking the depositions to certify to the good character of the witnesses, he should have filed exceptions. The court then would have had opportunity to ascertain from personal knowledge the credibility or the good character of the witnesses. The case of Hehr v. Hehr,
Judgment affirmed.