Diez v. Diez

53 So. 2d 677 | La. | 1951

MOISE, Justice.

Defendant, George Diez, Jr., prosecutes this appeal from a judgment of the district court which granted Mrs. Parilee Roddy Diez, his third wife, a divorce, a vinculo matrimonii, on the grounds of adultery alleged to have been committed by defendant in the early morning of July 31, 1949. The judgment also awarded to plaintiff $35 per month as alimony, and $200 as attorney’s fees. Defendant has appealed.

The sole question before us is one of fact: Does the evidence in the record justify our finding of manifest error in the trial court’s judgment that defendant-appellant was guilty of adultery?

There is the usual conflict of testimony. Plaintiff-appellee produced three witnesses, one of whom was her mother and the other two of whom were neighbors, who testified that they and the plaintiff followed appellant to his home from a night club in the early hours of the morning of July 31, 1949, and they saw first appellant, and then his ex-wife, go into appellant’s house (appellant and appellee had separated about a month previously), and embrace and kiss each other, that then the lights went out in the house and that the ex-wife failed to emerge for at least one hour and 30 minutes, whereupon, the observers departed. Defendant, on the other hand, denied that anyone was there with him, and his sister, Mrs. Bolt, testified that the ex-wife had slept with her that particular night at her, the sister’s home (they had all been at a dance); and the defendant’s brother testified that when he went to defendant’s home at 7 in the morning, defendant was alone. Another sister of defendant, Mrs. Harrison, testified that the ex-wife was in the home of Mrs. Bolt very early in the morning.

The evidence is conflicting and equally controversial. We must therefore draw on the experiences of the past, and look to the jurisprudence. The rule has been crystalized to the point of solid stabilization, that the judgment of a district court will not be disturbed on a question of fact unless manifestly erroneous. Lejeune v. Lejeune, 187 La. 339, 174 So. 643; Dessalles v. Tichenor, 189 La. 31, 179 So. 25; Barnes v. LeBlanc, 207 La. 989, 22 So.2d 404; Thornton v. Ellington, 209 La. 613, 25 So.2d 282 and Martin v. Martin, 212 La. 1092, 34 So.2d 329. The judge of the district court saw, heard, and observed the witnesses while on the stand. For this reason he is in a better position to weigh the credibility than we. We rest our opinion on this observation — we find no manifest error.

For the reasons assigned, the judgment appealed from is affirmed, defendant to pay all costs.