Suesemilch v. Suesemilch

Waterman, P. J. The only question presented in this case is whether in a proceeding for divorce, where the defendant fails to appear and the bill is taken as confessed, a divorce can be had upon the testimony of only one witness, examined in open court, and the deposition of one other witness. The statute of this State provides that “ if the bill is taken as confessed, the court shall proceed to hear the cause by examination of witnesses in open court.” Prior to the revision of the act concerning divorces made in 1874, the statute was, “ If the bill or petition shall be taken for confessed, the court may proceed to a hearing of the cause, by examination of witnesses in open court.” It is to be presumed that the legisture, in thus making imperative what was before merely permissive, intended to establish a new rule of practice. In England, under the old chancery system the chancellor never heard oral testimony; no witnesses were examined in open court, but his judicial action was entirely based upon the depositions of witnesses reduced to writing. Weeks on Depositions, Sec. 37. The statute of this State as it existed prior to 1874, permitted, in default divorce cases, the oral examination of witnesses in open court. In 1874 this permission was made a requirement to the extent of-requiring that at least more than one witness should be so examined. Hot only in common parlance but by text writers and courts is there a recognized distinction between the methods made use of for the examination of witnesses. Witnesses are examined before examiners, before the master, de lene esse, in open court. Black’s Law Dictionary, title, Examination; Bouvier’s Law Dictionary, title, Examination. An open court is a court formally opened and engaged in the transaction of judicial affairs, to which all persons who conduct themselves in an orderly manner are admitted. Hobert v. Hobert, 45 Iowa, 501; Bouvier’s Law Dictionary, title, Open Court. We do not wish to be understood as indicating that depositions may not also be received. In the present case we pass merely upon the question presented, as stated in this opinion. The decree of the Superior Court dismissing the bill is affirmed. Decree affirmed.