Ulrich v. Ulrich

8 Kan. 402

• Court: Supreme Court of Kansas
• Decided: July 15, 1871
• Status: Published

Opinions

The opinion of the court was delivered by

Kingman, O. J.:

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 case? Although, this question was not presented in the argument, (there having been no appearance for defendant in error,) it has been too often suggested not to challenge attention. That the present code confers the jurisdiction on this court to review divorce cases in the same manner as other cases, is not questioned. The doubt arises from the provisions of the constitution. Section 18 of art. 2 is as follows: “All power to grant divorces is vested in the district courts, subject to regulation bylaw;” while § 3 of art. 3 provides that “the supreme court shall have such appellate jurisdiction as may be provided by law.” These parts of the constitution are of equal force, and on this point should be considered in connection; and so examined they give the power to grant divorces solely to the district court, subject to such appeal to the supreme court as may be provided by law. This is the legitimate construction of these clauses of the constitution if both are taken together. The law having conferred the appellate jurisdiction on this court, we are constrained to hold, with much reluctance, that the court has jurisdiction of the case.

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 by collusion. These and many other things must be determined without those opportunities for knowing their truth which the district court possessed. We do not feel authorized to reverse the decision of the district court under these circumstances. If the party had desired this court to determine whether certain facts constituted extreme cruelty, section 290 of the code points out the mode by which that result can be attained, and one that would present the point freed from the embarrassments surrounding this case.

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.

Brewer, J., concurring.