8 Blackf. 60 | Ind. | 1846
Bill by the wife against the husband for divorce, alleging cruel treatment. The cause was submitted on bill, answer, and testimony, and the divorce granted.
The error insisted on in this decree is, that it was rendered upon insufficient proof. The record states that there was no evidence of the existence of the causes assigned for the divorce, except the confessions of the defendant coupled with the fact that the parties then were, and had been since the preceding May, separated. The cause was heard in October.
The correctness of this decree must depend upon the view taken of sect. 37, chapt. 35, R. S. 1843, which enacts that “No sentence of nullity of a marriage shall he pronounced solely on the declarations or confessions of the parties; but the Court shall, in all cases, require other satisfactory evidence of the existence of the facts on which the allegation of nullity is founded.” This section contains two distinct clauses, the second limiting and defining the first. By the first clause it is declared that there shall be testimony, in addition to' the confessions of the party, to the facts alleged, before a divorce shall be granted, without specifying the amount of such additional testimony. By the second clause, it is declared the additional testimony shall of itself amount to “ satisfactory evidence.” It will not be contended that the simple fact of these parties having lived apart from May to October, constitutes “satisfactory evidence of the existence of the facts ” of cruel usage charged in the complainant’s bill. If, then, we are governed by the plain letter of the law, we can but regard this decree as clearly unauthorized.
We are not informed of the grounds upon which the Court below placed their decision. The object of the statute being to prevent collusion on the one hand and extorted testimony on the other, the Court, being satisfied that neither of these existed in this case, may have felt at liberty to give to the confessions of the party the weight of evidence, and thus “ take the case out of the statute.” Upon this class of cases, we are not of opinion that such a discretion in the Court is compatible with sound policy or the intention of the legislature. Indeed, it would seem to have been the chief design of
'The- decree is reversed. Cause remanded, &c.