40 Mich. 493 | Mich. | 1879
Mrs. McClung filed her bill for divorce on the grounds of cruelty and adultery. The causes of trouble, so far as they appear in the proofs, are very closely connected, and arose chiefly from conduct of an improper character with two women named Taylor and Jadwin. The defense rests on either denials or explanations of the conduct complained of, and on the claim that defendant was wrongfully prevented from putting in his proofs. The last point requires consideration by itself.
The case was put at issue June 3d, 1876, and the time for taking testimony was enlarged by stipulation
There is nothing to indicate that defendant was deprived of taking any testimony he intended to take before the original time had run out. His affidavits made on more than one occasion indicate that he did not intend to introduce testimony to controvert the complainant’s proofs until some of her later witnesses had shown facts which seemed to him worthy of reply.
We find nothing which satisfies us that he had not the fullest opportunity of cross-examining complainant’s witnesses, and it. was in most cases exercised as fully as justice required, and more fully in some cases than propriety demanded.
As to his own proofs of which he claims to have been deprived, we do not think tho theory set up is the correct one. Every person from the allegations in the issue made is supposed to understand that an attempt will be made on either hand to prove or disprove each important fact. It is expected that each party will proceed within the time fixed by the rules of practice to introduce such proofs as will make out his cause or defense. Under the English practice the whole testimony was closed before either party was at liberty to know what had been sworn to. After publication it was a very rare thing to open proofs so as to allow contradictory evidence to be put in, because of the danger of fabricating testimony for the occasion. Our practice prevents surprise by allowing open examinations. But it has never been customary to favor the practice of keeping back testimony on one side until proofs are .concluded on the other. The court necessarily retains
While it is undoubtedly competent, and often proper to open proofs generally and allow further testimony on both sides, yet under the old practice that was seldom if ever done, and the occasion for further proofs may affect one party, or one party may have special equities. It was not irregular to allow complainant to take proofs when such liberty was not extended to defendant. As to its propriety these considerations appear plainly: defendant pertinaciously and vexatiously refused to pay the alimony ordered by the court, and put complainant to inconvenience and offensive annoyance. She had not the means he was bound to give her of expediting her cause. On the other hand, defendant could at any time have taken his own proofs, and when he applied to the court for what was matter of favor and discretion, he was still in open contempt, and his affidavits were contradicted, and in some respects at least palpably false. We are not called on to consider whether the court can deprive a party of a right, in addition to the usual punishment for contempt. It is certain that no court is bound to extend any favors to persons who disregard its authority.
We think the cause was properly heard on the testimony.
The case made by the bill rests upon charges of cruelty, involving misconduct with other women and adultery. The specific charges of adultery mention only the name of one Sarah Taylor. The proofs refer in addition to Minerva Jadwin, who is not mentioned by name in the bill, although coming within some of its general references. The court below granted a divorce for cruelty,
It would serve no good purpose to enlarge upon the details of this case. An outline of the facts will serve to explain its character.
The parties were married very young, and are now between fifty and sixty years old. Both were in moderate circumstances, and neither refined nor cultivated. They were frugal and industrious, and from their marriage in 1840 until they removed to Michigan in 1851, had accumulated some property. From 1851 until 1869 or 1870 they lived on a farm near Niles, and during that period defendant became comparatively wealthy. They then moved into the city of Niles, where they have since lived, and where defendant has considerable investments in property. They have one child, a son who has been for several years settled on a farm with his family.
Some time after moving to Niles, the parties who had previously been connected with the Methodist church, became attached to spiritualism, and Mrs. McClung became a medium, under the supposed influence of an Indian whom they called Kenowassa. Their house was much resorted to for meetings, and they visited other places to attend them.
Three or four years before the bill was filed, the bill claims, and we think the proofs show, that defendant took up, in addition to his former doctrines, opinions in favor of freedom from the obligations of the marriage relation, and unrestrained liberty of conduct. Complainant claims that the result of this was a change in his treatment of her, including not only neglect, but abuse and cruelty in various ways, aggravated by misconduct with other women.
Defendant insists that complainant herself entertained the same loose opinions, and denies that he was guilty of any actual misconduct.
Without dwelling ron the facts, we think a case of cruelty was made out. And we think there was full proof of adultery, — although, possibly, if this were the only cause alleged, an amendment of the bill might have been required.
We think the decree for alimony should not be disturbed. The experience of the past shows that if an annuity had been granted, instead of a gross allowance, defendant would probably resort to every means in his power to avoid its regular payment. We do not think' complainant should be any longer exposed to the annoyances which any dealings with him are likely to bring. There is some difficulty in arriving at the truth concerning the exact extent of defendant’s means. We do not feel disposed to question the correctness of the conclusions of the circuit judge on this head. The time for