127 Mich. 322 | Mich. | 1901
The complainant has appealed from a decree denying her a divorce in a pro confesso case. The important testimony was given by herself, and her husband, the defendant, was called by order of the court. A decree was denied by the court upon two grounds:
First. That, “ considering complainant’s testimony, and viewing the manner in which she gave it, I cannot say that it satisfies me clearly, and I decline to make a judicial determination that it proves the cause for divorce alleged in the bill.”
Second. “ The complainant has not made a case. The statute provides (section 8652, 3 Comp. Laws), that‘no
We think the court had authority to require the husband to appear and testify, under the statute (section 211, 1 Comp. Laws).
We think the court’s construction of section 8652 erroneous. The declarations there referred to are confessions, as contradistinguished from testimony as a witness.
While the conscience of the court is not to yield to testimony of a witness whom he disbelieves, and while we recognize the advantage of seeing and heajjj^rthe witness, and the presumption arising therefrom, tS^court is not concluded by the certification of disbelief, and by the presumption, from reviewing a case upon the merits. In the present case we are of the opinion that a divorce should have been granted upon the proofs.
The decree is reversed, and a decree of divorce granted, with costs of both courts.
