King v. King

28 Ala. 315 | Ala. | 1856

RICE, J.

We have carefully examined each of the forty-three exceptions, which were taken by the appellant, in the court below, to the testimony offered and relied on by the appellee; and, in arriving at our conclusions upon the issues presented by the pleadings, we have allowed, to him all the benefit to which those exceptions entitle him. A notice in detail of them is useless; it is enough for us to state the rules which apply to them, and by which we have been governed in disposing of them,.

The rules which govern the taking of depositions in chancery causes, commenced since the. Code went into effect, are not in all respects the same as those which govern the taking' of depositions in cases at common law. - Section 2920 of the Code provides, that testimony in chancery causes must be’ "taken by interrogatories, tinder-the rules now in force, ór such as may hereafter be adopted.

A commissioner, appointed to take the answers of a witness to interrogatories, in a chancery cause, is invested with power to administer the necessary oath, and to make a return to the court from which he derived his appointment, and under whose authority he acts. When the return embraces the commission, the interrogatories, the caption of the answers, and the certificate, all these together must be looked at in determining whether the commissioner has substantially performed his duty. The caption is as much a part of the return as is the certificate. The return is, prima facie, entitled to full' faith and credit; and if it shows, by a direct statement, or otherwise, that the deposition was taken pursuant to the commission, and the commission is -unobjectionable, and not objected to, the court should, in the absence of proof aliunde, overrule any motion to suppress, founded merely on a defect in one part of the return, which is supplied in some other part of the return. — Comstock v. Meek, 7 Ala. R. 528; Olds v. Powell, 7 ib. 652; Potier v. Barclay, 15 ib. 439; Ulmer v. Anstill, 9 Porter, 157; Glover v. Millings, 2 Stew. & Por. 28. ‘Thus, a defect in the certificate, which'is supplied in the caption, is no ground for suppressing a deposition in a chancery cause.

If the return states that the deposition was taken pursuant to the commission, it is not essential that it should also state .the manner of pursuing the commission. If it states that the witness was “sworn and examined” by the commissioner, “by virtue of a commission” issued out of the chancery court of Macon county; and such a commission, with the interrogatories and answers, is returned to that court; and the commission and interrogatories specify the particular case in which they were put forth; and the deposition shows that the witness knew, at the time he was answering the interrogatories, that he was -testifying in that particular case, — the presumption is, that the commissioner swore- the witness, by virtue of that commission, and in the case therein specified.— Olds v. Powell, and other cases, supra.

The cases of Richardson v. Richardson, 4 Porter, 467, and Moyler v. Moyler, 11 Ala. Rep. 624, were decided under the influence of the 4th section of the act of 1824, in relation to the confessions of the parties in suits for divorces, which was in tbe following words : “In order to prevent collusion between the parties, in no case shall the confession of them,’ or either of them, be taken or received as evidence, in any case of divorce.” — Clay’s Dig. 171, § 16.

But the Code repealed that section, and substituted for it, in section 1966,,the following provision : “ No decree can be rendered on the confession of the parties, or either of them.”

Tbe distinction between the admissibility and the sufficiency of.evidence is well known; and that is the very distinction taken and maintained in the provision of the Code above quoted. The act of 1824 made the confessions inadmissible as evidence. The Code makes them insufficient, but does not absolutely exclude them. It makes them admissible, but forbids the rendition of a decree for divorce, when they constitute the only evidence of the alleged cause for divorce. It does not, however, forbid the rendition of such decree when they do not constitute the only evidence, but are proved in conjunction with .other circumstances and conduct, which confirm or tend to confirm them, and repel the idea of collusion between the parties. A decree for divorce, rendered on confessions, and conduct, and circumstances, is not a decree, “rendered on the confession of the parties”, within the meaning of the Code. — Shelford on Marriage and Divorce, 411; Mortimer v. Mortimer, 2 Hagg. Cons. R. 316; Williams v. Williams, 1 ib. 304; Harris v. Harris, 2 Hagg. Eccl. R. 376; Morgan v. The State, 11 Ala. R. 289; Bell v. Rhea, 1 ib. 83.

The provision of the Code above quoted, was designed to guard against collusion between the husband and the wife. Whilst; therefore, it allows their confessions to be received, it denies credit to them, whenever they are -unsupported. It is, in substance, the adoption of the 105th of the ecclesiastical canons of 1603, “ that in all proceedings in divorce and nullities of matrimony, good circumspection and advice be used, and that the truth may (as far as possible) be sifted .out by the deposition of witnesses, and other lawful proofs and evictions, and that credit be not given to the sole confession of the parties themselves, either within or without the court.”— Shelford-on Mar. and Divorce, 411, and note (i).

Disregarding all the evidence the consideration of which is not justified by the views and rules above expressed, there is sufficient testimony, of unexceptionable character, to entitle the wife to the protection of the law, and to the decree rendered in her favor by the chancellor. The main features of the alleged cruelty are, irritability of temper, producing ungovernable passion, ending occasionally in acts of personal violence, and of course attended with the danger of a repetition of personal mischief. The wife is not without blame; but enough is not proved to justify the ferocity of the husband. The decree for divorce is fully sustained by the following authorities: Holden v. Holden, 1 Hagg. Cons. R. 453; Westmeath v. Westmeath, 2 Hagg. Eccl. R. Suppl. 73, 238; Shelf, on Mar. and Divorce, 429 to 435; Hughes v. Hughes, 19 Ala. R. 307; David v. David, 27 ib. 222.

The ground upon which a divorce was denied to the wife in David v. David, supra, was, that she, by her own misconduct, had brought upon herself the ill treatment of which she complained; and that it was not wholly out of proportion to her offence, nor without excuse, when considered with reference to the provocation. But, in the present case, the failings of the wife have been inordinately resented, and visited with intemperate violence and inexcusable harshness. When the passions of the husband are thus shown to be so much out of his own control, that it is inconsistent with the personal safety'of the wife to continue in his society, it is immaterial from what provocation such violence originated. Such a tendency to bodily mischief renders cohabitation unsafe, and is a peril from which the wife is entitled to protection.

The allowance made to the wife by the chancellor, on granting her a divorce, is justified by the evidence, under the provisions of our law. — Code, §§ 1971,1972.

On this appeal, we shall not decide again the matters which were decided in awarding the mandamus to Chancellor Clark on the application of the appellee at the last term. We allude to the decision made on that application merely ■ to state that the matters embraced by it are distinct, and must be kept distinct, from the matters embraced by this appeal.

The decree of Chancellor Walker, granting the divorce to the appellee, and determining her allowance under the provisions of sections 1971 and 1972 of the Code, is in all things affirmed, at the costs of the appellant.