White v. White

This is a suit for divorce on statutory grounds. The defendant, answering the suit, denied the allegations of the petition, and, as plaintiff in reco’nvention, asked for a divorce on the same ground or, in the alternative, for a separation from bed and board on the ground of cruel treatment. The court gave judgment for the plaintiff. The defendant has appealed.

*719 After hearing all of the evidence off erred by the plaintiff, including the testimony of the defendant under cross-examination, and having heard, on behalf of the defendant, the testimony of the corespondent named in the plaintiff’s petition, the judge announced that he would not hear any further evidence for the defendant. She and the corespondent named in the plaintiff’s petition had both denied in their testimony the charge made in the plaintiff’s petition. Her attorney then announced what facts he intended to prove by certain witnesses who were in court, but the judge refused to hear them, saying that he would not believe them under oath.

We are constrained to hold that the judge erred in rejecting the testimony of the defendant’s witnesses without hearing them. Even though the trial judge might not have believed the testimony offered by the defendant, it should have been heard and considered, and especially should it have been received in order to be considered by the appellate court, which has jurisdiction oyer questions of fact as well as of law in civil cases.

The judgment is annulled, and the case is ordered remanded to the civil district court for further proceedings consistent with the foregoing opinion. The plaintiff, appellee, is to pay the costs of this appeal. All other costs are to depend upon the final judgment.