Rosecrance v. Rosecrance

Hooker, J.

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 *323 decree of divorce shall be made solely on the declarations * * * of the parties, but the court shall require other evidence of the facts alleged in the bill for that purpose; but either party may, if he or she elect, testify in relation to such facts.’ If the testimony of the complainant had been clear and satisfactory, I should still hesitate, until it was supported by other evidence of the facts alleged, to grant a decree.”

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.

The other Justices concurred