8 Kan. 402 | Kan. | 1871
Lead Opinion
The opinion of the court was delivered by
This is a proceeding to reverse a judgment of the Leavenworth district court refusing to grant a divorce to the plaintiff in error. Has this court jurisdiction of the
The errors alleged in this court may be resolved into one, and that is that the decision of the district court was contrary to the evidence. The cause alleged for the divorce was extreme cruelty. The trial was ex fcurte, for though the defendant had answered he was silent on the trial.
The record contains all the evidence, and as it appears therein would seem to prove enough to entitle the plaintiff to a divorce; but it must be borne in mind that the district court had the great advantage of hearing the witnesses, of observing their demeanor while testifying, and all the aids that such position affords in the ascertainment of the truth; and that court finds that there is no cause of divorce — a decision it adhered to on a motion for a new trial. To overturn that decision this court must say that the witnesses were entitled to full credit — that there was not even an innocent exaggeration in their testimony growing out of their temperament, or the exasperation of the moment, or from any other cause; that there were no indications that the action had been brought and the case made up
In the argument great stress was laid upon the reasons given by the judge of the district court for the decision made in this ease. Those reasons are not in the record, and cannot affect the decision of this case. The judgment is affirmed.
Concurrence Opinion
I concur with the court in this case that the supreme court has jurisdiction of cases for divorce when the same are brought to this court from the district court on petition in error. But I cannot concur in the decision of this case. From the evidence taken in the court below, and brought to this court, it seems to me that “ extreme cruelty ” was shown beyond all doubt. If so, the court below erred either in its conclusion of law as to what extreme cruelty is, or in its application of the law. I think the court below erred in overruling the plaintiff’s motion for a new trial.
By the Court: Judgment affirmed.