Rosecrance v. Rosecrance

Michigan Supreme Court

Rosecrance v. Rosecrance

86 N.W. 800, 127 Mich. 322, 1901 Mich. LEXIS 985

CourtMichigan Supreme Court

DecidedJuly 2, 1901

StatusPublished

Cited by7 cases

This text of 86 N.W. 800 (Rosecrance v. Rosecrance) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rosecrance v. Rosecrance, 86 N.W. 800, 127 Mich. 322, 1901 Mich. LEXIS 985 (Mich. 1901).

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Opinion

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]*323decree 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

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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]*323decree 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

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Bluebook (online)

86 N.W. 800, 127 Mich. 322, 1901 Mich. LEXIS 985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosecrance-v-rosecrance-mich-1901.

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