37 Mich. 603 | Mich. | 1877
The court below awarded to the complainant a divorce from the bonds of matrimony for the cause of extreme cruelty. Our examination of the record has satisfied us that though the case is not a remarkably strong one, the decree may be supported on the authority of Briggs v. Briggs, 20 Mich., 34, provided the testimony of the wife, on which to some extent the proof of cruelty depends, can be regarded as properly taken in the case. It appears from the record that when the wife was called to the stand as a witness by whom to prove the cruelty, her evidence was -objected to by the defense, but the circuit judge, remarking that he supposed it was competent for the court to order the parties sworn, overruled the-objection, and suffered the oath to be administered to her. No formal order for her examination was made, nor was: any action had which indicated more distinctly than the foregoing remark, that the court considered the testimony as being taken under his order.
It seems to be conceded that neither husband nor wife-can be a general witness on his or her own behalf in divorce cases without the consent of the other; and indeed the statute would seem to put this beyond controversy, for it expressly provides that neither husband nor wife shall be examined as a witness for or against the other without consent, except in certain specified cases, of which divorce is-not one. Comp. L., § 5969. Whether there may not be
The statute of 1851 for the organization of the Supreme Court provided that the court “may at any time and in accordance with and for the speedy furtherance of justice in any suit, either at law or in equity, call upon the parties to such suit, or any witness thereto, to testify orally in open court; and said court may by rule provide for a similar practice in the circuit courts.” Comp. L., § 4927. Under the authority of this statute the Supreme Court, by chancery rule 99, provided that “In all chancery cases whatever, whether for divorce or otherwise, which are at issue on pleadings and proofs, the court may call upon the parties thereto, or any of them, or any witness thereto, to testify orally in open court.” We regard this rule as still in force, undisturbed and unimpaired by the subsequent statute first above referred to; and we are also satisfied from this record that though the circuit judge did not expressly call the complainant to the stand as a witness, yet that he understood he was proceeding under this rule, and was permitting her to be examined under his discretionary authority, and not because he considered her to be a general witness in the case under the statute. And this conclusion disposes of all question touching the competency of her evidence.
The only questions that remain relate to the allowance of alimony. This is objected to, first, because it is an allow
The allowance made was the sum of $8,500 payable in cash. The amount of defendant’s property as shown by the pleadings was $30,000. There is reason to think, however, that this has been considerably reduced by the expenses of this litigation. The circuit judge took some testimony on the subject which is very imperfectly reported, but as we understand it, the evidence showed the defendant to be then worth $17,000, all in real estate, — the personal estate being in value less than the amount of the debts owing by defendant. If the circuit judge intended to give as alimony one-half defendant’s property, making it payable in money, the allowance was not only excessive but ruinous. One-third the amount was an ample provision under the circumstances — say $5,666 — and as to this, it would have been reasonable to allow the defendant the option to have set off to complainant one-third his real estate in satisfaction of