Lyster v. Lyster

■Weight, C. J. We see no sufficient legal reason for granting this divorce. It was entirely in the power of the court below, to examine into the circumstances of the case, notwithstanding the consent of the parties ; and upon such examination, to refuse the prayer of the petitioner. It should be a very clear case, indeed, where it would not be the duty of the court to so inquire. The law requires that [132] tbe •court shall be satisfied; that it “ shall be made fully apparent to the court, that the parties cannot live together in peace and happiness,” and not that the parties shall be satisfied. It is not alone the immediate parties to this proceeding that are affected, but in most instances, the care and disposition of children and property ; and, in all cases, the proper moral order and peace of society will and must arise. And hence it is, that by section 1484 of the Code, the power is given to the court, in such cases, where a defendant makes a default, to bring him in by attachment, and compel him to answer; and, indeed, there is nothing in any part of our law, that takes from the court the power to make such examination, either in case of default, or when the parties consent to the divorce; or, indeed, in any case where it- may doubt whether sufficient legal reasons do exist for such divorce. It appears that in this case such examination was made, and upon that, a divorce was refused. It is, perhaps, scarcely necessary to refer to authorities to sustain so plain a proposition. It will, however, be' found recognized in Williamson v. Williamson, 1 Johns. Ch. 487; Van Veghten v. Van Veghten, 4 Ib. 501; Richardson v. Richardson, 4 Porter, 467; Miller v. Miller, 1 Green Ch. 139; Palmer v. Palmer, 1 Paige, 276. In the case from 1 Johnson, 487, above referred to, the chancellor uses this language: “To guard against all kind of improper influence, collusion, and fraud, it is the policy of the law not to proceed upon the ground of the consent of parties, to a dissolution of the marriage contract.” And in another case, the same learned chancellor says: “ The court cannot take notice of any consent or desire of the defendant, in compliance with the wishes of the plaintiff, and make that the ground even of a qualified divorce from bed and board. It ought to be well understood, that the court will not lend its judicial aid and sanction to any such voluntary agreement. Parties cannot lawfully rid themselves < of the duties of the marriage contract at the pleasure of either ox both of them.” And, indeed, it appears that, except by the laws of Prance and Prussia, no such relaxation of the mar [133] riage tie, is tolerated in Christian nations. In Evans v. Evans, 1 Hagg. Consist. 56, Lord Stowell, in speaking of these separations, says, “ that the disinclination to live together must be founded upon reasons which the law approves, and it is the duty of the eourt to see that those reasons are sufficient.” In this case the District Court, upon hearing testimony, found that those reasons were not sufficient. That testimony is not before us, and for this reason, if for none other, we should not disturb this decree, presuming, as we are bound to, where the evidence is not brought up, that there was sufficient to justify the decree. The consent of the defendant, given since the trial in tkef court below, cannot, of course, change the result. We can only act upon what guided the District Court. If we could, however, for'reasons above stated, this subsequent consent, could make no difference. It was the province and duty of the court, to judge what was, and was not, proved; and it is immaterial how much, or how strongly, the defendant may admit the sufficiency of the proof. The public has an interest in these cases, and the parties cannot be their own judges, but the court decides where so many interests are involved. Decree affirmed, and bill dismissed at plaintiff’s costs. Isbell, L, being absent, took no part in this decision.