207 N.W. 200 | Minn. | 1926
1. The parties were married in 1919. Both had been married before, and each had grown children by a former marriage. From near the beginning of their married life they had troubles and disagreements. The desertion is alleged to have commenced on March 1, 1923. The plaintiff made a case of technical desertion. The defendant *138
sought to justify refusing to live with him because of his ill treatment of her, and the instances to which she testifies are numerous. The plaintiff testified about one of them in his case in chief. In this, a charge by her of a vicious assault, his testimony was entirely opposed to that of the defendant, and the trial court believed him and disbelieved her. He did not testify in rebuttal. The defendant urges that her testimony was undisputed and should have been credited within the rule stated in Second Nat. Bank v. Donald,
2. Evidence of the defendant in support of her counterclaim charging cruel and inhuman treatment was not such as to require a finding in her favor. It was such as to justify one; whether it should be made was for the trial court.
The plaintiff did not testify in rebuttal of her testimony. This was a circumstance against him, as stated in the preceding paragraph, but for the reasons there stated it did not require an acceptance of the defendant's testimony. It was for the trial court to find whether cruelty justifying a divorce was proved.
The issues on the plaintiff's cause of action and on the defendant's counterclaim were of fact for the court. A finding either way on either would be sustained.
Order affirmed. *139