11 Mich. 284 | Mich. | 1863
Lead Opinion
Upon the hearing of this cause originally, the Circuit Court, not being able to determine the facts from the evidence, directed an issue to try and determine whether the acts of adultery set up in the answer had been committed. An issue was framed by the Judge and heard before a jury where he presided, and their verdict was returned with his approval, he certifying his minutes of the trial. He rendered a decree thereupon, based o,n .tlm
Being satisfied that the proceedings under the issue are entirely irregular, and the verdict one which should be set aside and disregarded, I feel constrained to give somewhat fully my reasons for this conclusion, as I deem the practice which has been followed too dangerous to be sanctioned as having any weight in an appellate court.
The grounds urged at the argument for giving to this verdict conclusive weight were, chiefly, that the verdict of a jury on issues from chancery will not be set aside except upon the strongest- reasons, and that, the Judge having been satisfied with the verdict, his certificate of approval should prevail.
I do not understand either of these rules to govern us. While a verdict fairly given, without improper reception or rejection of evidence, is not to be lightly disregarded, yet is has no binding force on such issues. A new trial will be ordered upon much slighter grounds than in an ordinary action at law. And even without a new trial, the Court may entirely disregard the verdict and make a decree against it, although it satisfied the Judge who tried the cause. The reason for this difference is, that in an action at 'law the jury are the sole judges of questions of' fact, while in a court of equity there is no process by which the Chancellor can substitute the conscience or belief of a jury for Ms own; and he must find the facts on Ms own responsibility. An issue is not framed to relieve him of this responsibility, but to aid him, by a trial in open-court, where witnesses are produced and examined orally more fully than they can be on paper. But it may easily happen that a verdict does not assist the Court in coming to a conclusion. And there is no authority which I have-discovered which renders it incumbent on any court of chancery, or even proper, to follow a verdict which is not
It appears that in several of these cases, and probably in all (for the practice appears to require it) the verdict was satisfactory to the Judge. That the opinion of the Judge should be regarded with much respect is undeniable; but, where the same Judge who heard the jury trial acts as Chancellor, there is less, foundation for any rule of approval in an appellate court, than where another Judge presides at law. No appellate court, reviewing facts, can permit its own views to be determined by those of the court appealed from, or rest its conclusions on his, however highly it may and should esteem his judgment. The reason why, if at all, the satisfaction of the law judge with the verdict receives weight is, is that he hears the jury trial without any knowledge beforehand of the evidence on the issues framed, or on the rest of the case. His opinion of the correctness of the verdict is therefore unbiased by any extraneous impressions; and, where judge and jury come to the same conclusion together, they are most likely to be right — although experience has shown, as in the cases cited — that the facts may not of necessity be as they find them. At least the verdict and certificate in such cases must usually be in accordance with, and based upon,
I think, therefore, that there is no foundation for any rule which would give to the verdict of a jury, so approved, any conclusive effect which would justify an appellate Court in following it, unless “the information collected before the jury, together with that which appears on the record, is sufficient to enable it to proceed satisfactorily.” 2 Dan. Ch. Pr. 1306; Bootle v. Blundell, 19 Ves. 500.
As an issue can only be granted at the hearing as a general thing, and as this issue was so awarded, it is manifest that it must be confined, not only to facts put in issue by the pleadings, but to facts concerning which some testimony has previously been introduced and read at the hearing. No question of doubt could arise upon any fact not sworn to by some one. As the principal-errors claimed to have been committed on the trial are connected with the admission of improper testimony, it becomes material to understand the position of the case when this issue was ordered.
Complainant’s bill was based on cruel treatment, and also on a neglect- to provide for her support. The chief items of accusation were cruel language, endeavors to get rid of complainant, unfounded accusations against her, and a refusal to take her back from her father’s house, where she had gone on a visit with defendant’s consent, and
The Court on the hearing ordered an issue to try the charges of adultery set up in the answer. This order would not embrace the act testified to by Ann Teal, but, as she was required to be produced before the jury, the omission was doubtless accidental. But there was no possible foundation for any issue upon any other charges than those referred to by these three witnesses.
In drawing up the issue, which was done by the Court —the parties not agreeing — the charges of misconduct with Douglass were embraced in one count, covering December, 1857, January, April, May and June, 1858; and the autumn of 1857, specifying no part of any month, and no month of the autumn, and no place except the township of Dundee.
The count against Vosburgh related to December, 1857, and January, 1858, in Dundee, without further certainty of time or place.
The case of Wood v. Wood, before referred to, is very explicit on the danger of allowing charges without reasonable certainty of time, place and circumstance; remarking that information sufficient to justify the charge will enable the party making it to put it in a tangible form upon the record. Whatever latitude may be allowed in pleading, there is no need of it in framing an issue which is to test the truth of evidence already in. The charges of adultery with Douglass, prior to April, 1858, are not set up in the cross-bill or answer; and are therefore entirely unsustainable in this cause. The charge as to April had not been offered in evidence, and was equally improper to go into the issue.
The jury rendered a general verdict, not specifying which of the charges they found proved, and which not. Had they passed separately upon the charges, we might
There is no class of cases wherein more care is necessary to make definite issues than those where adultery is charged. No one can have had much experience at the bar without discovering how large a proportion of such charges are fabricated, and how often they are allowed to be proved by incomplete testimony. Circumstantial evidence is undoubtedly necessary, as a general thing, to prove such offenses; but this renders it the more necessary to secure to . the party charged such information of time, place and circumstance, as will enable him or her to meet the proof by legal evidence. It is very manifest that in the case before us the vagueness of the issues, as well as their extension beyond the pleadings, has caused the introduction before the jury of testimony very well calculated to prejudice their minds against complainant, and yet in no sense evidence of any fact charged.
The defendant in making out his case before the jury introduced evidence which, so far as Halsted Douglass was concerned, confined the charges to the month of June, 1858; — Ann Teal as well as Jane Johnson swearing only to acts within that month. This therefore was, so far as the jury were concerned, the only time concerning which inquiries could legitimately be made. If upon the pleadings the case was broader, it still was confined to
I am of opinion that the impeaching testimony would have rendered the verdict invalid under any circumstances, whatever might have been the formal correctness of the issues as framed. It was not founded on any answer which defendant was at liberty to controvert.
The deposition of Eva Langton was allowed to be read when she was present in Court. This was also illegal. It is very well settled that the order usually, made, that the depositions may be read, is only designed to remove legal objections which might exist by reason of the trial at law. being technically a separate proceeding, which until our Courts were entrusted with jurisdiction, both at law and in equity, was in another tribunal. But trials before a jury of issues from chancery are governed by the rules of courts of law, which do not permit depositions to be read when the witness is present. 2 Dan. Ch. Pr. 1302, 1303; 1 Barb. Ch. Pr, 452.
It involves two sets of issues — one based upon complainant’s bill, and the other on defendant’s answer and cross-bill.
I do not think complainant’s case sufficiently made out. She has proved an aggravated case of desertion — but not one of such cruel treatment as has been usually regarded as within the statute. Desertion alone is not one of the grounds relied on or charged, nor was it for the statutory period.
' Neither do I think that any case is made by defendant on his cross-bill. Jane Johnson’s testimony is the chief evidence which is at all conclusive. The testimony of Ann Teal and Eva Langton, if received to prove the act of adultery, is incredible. It is very manifest from their conduct that they drew no such inference at the time, and subsequent inferences are ■ of very little' value. Ann Teal’s detailed statement is inconsistent with itself. Jane Johnson’s evidence is quite direct; and had her contradictions and inconsistencies been such as could reasonably be accounted for by confusion and annoyance on cross, examination, it might be worthy of credit. But she has sworn as positively that she did not see the act committed, and did not see the parties on the bed together, as that she did see them. This is not a discrepancy which can be reconciled on any hypothesis. No one can safely be charged on such contradictions. In this I leave out of view the merely impeaching testimony, which is not eon■clusive either way, and also her suspicious conduct, which is equally undecisive.
But the conduct of defendant has been such as to raise strong suspicions of fabrication. The facts sworn to are such as a little coloring one way or the other would render conclusive or valueless. Defendant appears never to have had any special affection for his wife. He is shown
I am of opinion that the charges of adultery are not made out; and that both bill and cross-bill should be dismissed.
Dissenting Opinion
dissenting:
The question of adultery was submitted to a jury, g,nd I am satisfied with their verdict after reviewing the whole testimony — that before the Court when the feigned issue was awarded, and that given before the jury on the trial.
I do not see how the jury could have come to a different conclusion if they believed the evidence of Teal and Johnson. Their testimony warrants the verdict, and the Judge who awarded the issue and presided at the trial certifies that he is satisfied with the finding of the jury. We all know how much the weight to be given to evidence depends on the deportment of the witness while on the stand, and his manner of testifying.
As to the alleged errors on the trial, I do not regard 'them of such a character as to affect the verdict. The Court will not withhold its decree, or grant a new trial, for slight errors, if it is satisfied with the verdict. ■
Under the circumstances I do not think the cross-examination of Douglass, and the examination of witnesses to contradict him, was clearly erroneous, as its only object was to discredit him. I cannot look upon the questions put to him as so clearly outside of the case as to come within the rule excluding the examination of witnesses to contradict him.
The order for a feigned issue directed that either party should be at liberty to' read the deposition of any witness that had been taken in the cause, except the depositions of certain witnesses mentioned in the order, who were to be examined before the jury. Mrs. Langton was not one of them.
The principal question in this case is upon the fact of adultery: the testimony bearing upon this point is very conflicting, and any conclusion to be drawn by the Court
The question was one peculiarly fitted for investigation by a jury. And if nothing had occurred on the trial to vitiate the verdict — if satisfied that the question had been fairly tried by them without the admission of incompetent testimony, by which they might have been misled — as the more important witnesses were examined in their presence, I should have felt much more confidence in the correctness of their conclusion than in any which I should be able to 'draw from the written evidence alone, and I should then have concurred substantially in the opinion expressed by my brother Manning.
But the defendant (in the original suit) was allowed not only to inquire of the witness Douglass, as to his statements or confessions of adultery with Mrs. Dunn at a period outside o of the issue made by the pleadings, but to contradict the witness by showing that he had in fact made such statements or confessions. I concur with my brother Campbell that this was clearly erroneous. This improper testimony was of a character peculiarly calculated to mislead the minds of the jury to the prejudice of Mrs. Dunn. I concur also with my brother Campbell that the written deposition of Mrs. Eva Langton was improperly
I do not think: the vagueness of the issue would, of itself, be sufficient, under the circumstances of this case, to invalidate the verdict, as suggested by my brother Campbell. The issue, it is true, as framed by the Court, was broader than that authorized by the pleadings; and if evidence of adultery had been given relating to a period not covered by the pleadings, the verdict would have been of no validity. But the only evidence given tending to prove adultery was confined to the period covered by the pleadings.
The jury must, I think, be presumed to have found their verdict upon a charge of' which there was some evidence, rather than upon a charge of which there was none whatever. There was no evidence fairly tending to the proof of any adultery except that with Douglass in the month of June, 1858. This was clearly in issue by the pleadings, and had been so frequently the subject of judicial inquiry, previous to this jury trial, that there could be no pretext that Mrs. Dunn or her counsel could have been taken by surprise. If her counsel apprehended any danger from the vagueness of the charge as to time, place or occasion, as stated in Dunn’s answer and cross-bill, it was easy to have secured the requisite certainty by demurrer. But
I concur with my brother Campbell that Mrs. Dunn has also failed to establish the case made by her bill; and that both the original and cross - bill should be dismissed. I should have been glad to have arrived at a different result; as I am satisfied from the nature of the case, as shown by the evidence, that the welfare of both parties would have '.been promoted by a,divorce.
Decree reversed, and bill and cross-bill dismissed.