Smith v. Smith

15 Ohio Law. Abs. 536 | Ohio Ct. App. | 1933

OPINION

By BARNES, J.

Counsel for plaintiff in error in his brief in substance says that they are relying upon one point of error and that is that the judgment and finding of the court is against the manifest weight of the evidence. In considering this question it is necessary to read and examine the entire record. We have so done.

In considering and determining this question we have in mind the rules of law relative to condonation and also that divorce cannot be granted on uncorroborated testimony of the parties. But for these rules of law, we would have no difficulty. There is evidence presented by the plaintiff and there are certain admissions of the defendant which amply support the allegations of the petition. The plaintiff, Mary Smith, a few years previous had brought an action for divorce, but this case was dismissed and the parties again lived together. Of course, this would be condonation of any known dereliction preceding the dismissal of that case and a resumption of marital relations. However, evidence of the misconduct at that time was properly admissible as corroborative of what plaintiff contends to be p continuing line of conduct thereafter, and abo as an aid in determining that the cruelty claimed was extreme and that the neglect of duty was gross. If we were trying this case originally, there is grave doubt if we would find that there was sufficient corroborative evidence to meet the requirements of the law. As a reviewing court we cannot disturb the verdict unless ihe judgment is so manifestly against the weight as to shock the conscience. We do find in the record some corroborative testimony, and hence we feel that the judgment and finding of the lower court should be affirmed so far as it relates to the divorce, custody of the children and order for their support and the further division of the household goods and so forth.

Finding no error, the judgment will be affirmed. Costs will be adjudged against the plaintiff in error. Exceptions will bo allowed.

HORNBECK, PJ, and KUNKLE. J, concur.