44 Minn. 132 | Minn. | 1890
This is an action, for a divorce on the grounds of habitual drunkenness and of.cruelty. The cause was tried before the Honorable Levi Vilas, who, after finding as to the matters in issue that “the allegations of- the pleadings are not established by the evidence,” directed judgment to be entered for the defendant. Judge Vilas died soon after that; and upon a settled case a motion for a new trial was made before the Honorable Charles E. Otis, who had succeeded Judge Vilas in office. Judge Otis, upon the case thus presented, denied the motion for a new trial; and from that order this appeal is taken.
The finding of fact by Judge Vilas, to the effect that the allegations of the complaint as to cruelty and habitual drunkenness were not established by the evidence, is equivalent to a general finding that, in respect to such matters, the fact was not as alleged. Hewitt
It cannot be said that the decision of Judge Yilas was not justified by the evidence, in view of the direct conflict in the testimony to which we have before referred, and of the further fact that there was no evidence presented on the part of the plaintiff of the drunkenness of the defendant subsequent to her separation from him in May, 1887, about a year and a half prior to the commencement of this action. The defendant’s testimony was to the effect that, during a period which would cover about the last half of the year preceding the commencement of the action, he stopped drinking altogether. It was not, therefore, clearly proved — accepting as true the testimony on the
Order affirmed.