47 Tex. 336 | Tex. | 1877
The parties to this action mutually seek to obtain a divorce, upon the ground of excesses, cruel treatment, and outrages of' such a nature as to render their living together unsupportable, charged by them, respectively, in the petition and cross-bill. Heither of them desiring a jury, the case was tried by the judge, who, after considering the law and facts upon which they respectively relied, rendered judgment, refusing to grant a divorce to either of them, upon the case made under the petition of the plaintiff, or on the cross-bill filed by the defendant. From this judgment both parties prosecuted an appeal; and each of them have, in effect, assigned for error—
1st. The action of the court in sustaining the exceptions of the one to the pleadings of the other.
2d. In ruling, that, owing to their mutual recrimination, neither of them is entitled to a divorce.
3d. The refusal to grant a decree in favor of either party, on the law and facts as submitted on the final hearing.
An additional assignment is also made by appellant, that the court erred in excluding the evidence of admissions made
The recital of the excesses, cruelties, and outrages, with which the parties mutually charge each other in the petition and cross-bill, and their respective amendment, fills nearly if not quite one hundred pages of the record, and it has taken two hundred and fifty or more pages to exhibit to us the evidence adduced upon the trial in support of the charges made by them, respectively, in their pleading.
"We have endeavored to give such patient and careful examination to the questions suggested for our determination as this voluminous record has required, and such as the painful sympathy which such criminations and recriminations between husband and wife, as is here exhibited, will always arouse, and a proper regard for social order and the general good of society imperatively demands. Yet, while this examination has painfully impressed us with a thorough conviction of the existence of a condition of domestic infelicity, into which the parties to this action have fallen, through their mutual irascible and ungovernable tempers, which forebodes a most unhappy future for themselves and their children, still, we cannot say there is any error in the court below, for which the judgment should be reversed, without a departure from the settled rules of practice and decision governing this court; nor can we grant a-decree of divorce to either of these parties, in the attitude in which the record comes before us, unless we were at liberty to permit our sympathy for the unhappy condition in which, through their imperfections of temper, they have in all probability
The record not only fails to exhibit any basis whatever to support the first assignment of error, but, on the contrary, it clearly shows that it is entirely without foundation. There was no exception or demurrer by the defendant to the petition, as finally amended, or by the plaintiff to the cross-bill, as also amended by defendant; but the case went to the court, and was tried upon the pleadings as presented by the parties. True, at an earlier state of the ease, demurrers were sustained to the pleadings of each party; but they were mutually permitted to amend. None of their averments were stricken out by the ruling of the court; and as the trial was had on the averments, in the original as well as amended pleadings, if the facts proved were not such as to require a decree, certainly no injury can have resulted from the action of the court on the demurrer, even if its ruling upon them should have been different. Nor can we say that the court erred in its conclusion upon the testimony. It is a familiar and well-established rule, that where a jury is waived, the same presumptions are to be indulged in favor of the correctness of the judgment of the court upon the facts as is applied in support of the verdict of the jury.
If it should he granted that the evidence in the record would have justified a different conclusion from that at which the court arrived, and even if we could say that a different conclusion would have been more satisfactory to our minds, it would be of no moment; for it certainly cannot be denied that there is not wanting in the record evidence of a contrary tendency, amply sufficient to support the judgment. As this is the case, the judgment cannot be disturbed, unless we would overturn the settled rule of decisions of the court from its very beginning to the present time, for the sake of reaching a desired conclusion in a special case. Nor can we say, from
There is no error in the judgment, and it is therefore affirmed.
Affirmed,