30 Ga. App. 796 | Ga. Ct. App. | 1923
The only question for determination by this court is whether or not the wife of the plaintiff who sues another for alienating her affections is a competent witness for the plaintiff, her husband, to prove the allegations of the petition involving the adultery of the wife with the defendant. The judge who tried the case held that she was not. This ruling was right. Of course, we realize that should the witness desire to take advantage of the constitutional provision that “ no person shall be compelled to give testimony tending in any manner to incriminate himself ” (Constitution, art. 1, sec. 1, par. 6; Civil Code of 1910, § 6362), she could not in any event be compelled to testify in this case. Prior to what is known as the enabling act of 1866 (Ga. L. 1866, p. 138; Civil Code of 1910, § 5861) “the wife of the plaintiff could not be heard to testify at all in favor of the husband. The same statute which rendered her competent to testify for him rendered him competent to testify for himself.” Atlanta Street Railroad Co. v. Walker, 93 Ga. 462 (21 S. E. 48). Except in certain specified instances, the act of 1866, supra, makes every person offered as a witness competent to testify, the act, however, providing that “nothing herein contained shall apply to any action, suit or proceeding, or bill in any court of law or equity instituted in eon-
In Sloan v. Briant, 56 Ga. 59, after quoting the exception stated above, Judge Jackson said: “Is this an action, suit, or proceeding instituted in consequence of adultery? The exception is as broad as language can make it. Any action, or suit, or proceeding, or bill, in any court, are the terms. Any, as if to embrace every possible case; any, to apply to every court. Well, if it had not been for adultery, this child had not been born; had not this child been born, this promise would not have been made after its birth, nor, if made before, would have been operative. Adultery is the cause, this contract its sequence. Whether it be the immediate or the remote cause is immaterial, if the suit be the consequence of adultery as the cause. The words ‘in consequence’ apply as well to the initiatory as to the proximate cause of this suit. In Cook v. Cook, 46 Georgia Reports, 308, it was held that the husband was incompetent to prove the adultery of the wife in a divorce case, under this clause or section of the code. The action of divorce was no more brought or instituted in consequence of adultery than the case at bar was instituted for the same cause. Adultery was the cause, the suit the consequence, in each case. Nor will it do to say that, though she might be incompetent to prove the cohabitation, the adultery, she is competent to prove the contract. She was excluded altogether before the act of 1866; that act lets in certain parties to suits to testify, but still applies the old law of exclusion on account of being a party to her. ‘ Nothing contained
Judgment affirmed.