Fox v. Fox

25 Cal. 587 | Cal. | 1864

By the Court, Rhodes, J.

This is an action for a divorce a vinculo matrimonii, on the alleged ground of adultery. The Court found for the plaintiff, and decreed a divorce. The defendant’s motion for a new trial was denied, and she appeals from the order and the judgment.

The appellant assigns for error the failure of the plaintiff to prove the marriage. The plaintiff alleges that he was married to the defendant in 1852, in the City of Chicago, and that ever since that time they have lived together as husband and wife. The defendant failed to deny this allegation, and it thereby stands admitted as fully as if she had expressly alleged it to be true, and in any civil action, except an action for a divorce, her admission thus made upon the record, of the fact of the marriage, would be conclusive upon her, and no evidence on the point would be required. The Act concerning divorces (section eight) provides that “ no divorce shall be granted in any action by default of the defendant, nor on the admission or statement of either party; but in all cases the Court shall require proof of the facts alleged as the grounds for divorce.”.

What are the grounds for a divorce referred to in the statute? They are those causes enumerated in section four of said Act—natural impotence, adultery, extreme cruelty, wilful desertion, and the other grounds mentioned in that section. The marriage is in no sense a ground for the divorce. The marriage must have been solemnized before an action can be maintained for its dissolution, but the existence of that fact being found, then the legal causes for its dissolution constitute the grounds mentioned in the statute, of which proof is required. The statute was framed to prevent collusion between the parties, having for its object the' dissolution of the marriage relation, not its creation. The fact of the marriage is fully established by the-defendant’s failure to deny it in her answer, and that is equivalent to the most direct proof.

The appellant makes the point that the finding is insufficient to authorize the decree, because there was no finding of the fact of the marriage. That fact was not in issue between the parties, and therefore was not required to be found by the Court.

There was no error in admitting in evidence the confessions of David Fox, the alleged particeps crimmis, for his deposition had been taken in behalf of the defendant, and his confessions previously made were admissible and competent to contradict him or impeach his credit. While a witness for the plaintiff, who lived in the same house with the defendant and the child of the parties, aged about six years, was testifying on behalf of the plaintiff, he asked the witness this question: “ Did you ever hear the child say anything about her mother sleeping with Uncle David?” The defendant objected to the question as “ leading, incompetent; that the child would not be a corn-tent Witness on account of its age.” The Court overruled the objection. The question was not leading, and if it had been it was admissible in that form, in the discretion of the Court. The objection on the ground of the tender age of the child is not worthy of any consideration, for if the declarations of any person in respect to the subject of the inquiry were admissible those of the child would be. The objection cannot be maintained on the ground that the testimony was incompetent. The inquiry was not what the child had said, but was preliminary to questions relating to that subject. The only proper answer to the question asked was simply “ Yes ” or “ No and if answered in the affirmative it might be proper, after showing that the mother was present, to ask what the child said, for the. purpose of proving what was her mother’s language, conduct, or demeanor when the child made the declaration.

The witness, instead of answering the question, went on to state what the child said, and what another person thereupon said, without objection on the part of the defendant. If the defendant had objected to such testimony, or if after it had been given, without showing the presence of the defendant, she had moved for its exclusion, it would have been error for the Court to have overruled the objection or motion. But no such objection was made. It was confined to the preliminary inquiry, whether the witness had heard the child say anything about the matter referred to in the question.

Judgment affirmed.