Freeny v. Freeny

Fowler, J., delivered the opinion of the Court. The bill in this case was filed for a divorce a mensa. The ground alleged is cruelty of treatment. The questions presented, with the exception of a few minor ones in regard to exceptions to testimony, involve issues df fáct, and may be [408] briefly disposed of. We entirely agree with the conclusions announced by the learned Judges below. The case was heard before a full bench, and the carefully prepared and exhaustive opinion, which was concurred in by all the Judges, after reviewing all the testimony, grants to the wife the relief she prays for in her bill. This conclusion is in our opinion entirely in accordance with the decided weight of the testimony. It would serve no good purpose to discuss in detail the testimony which discloses the unhappy relations which existed between the plaintiff and defendant, nor would it be either instructive or interesting to show that the charges of cruel treatment on which the wife bases her claim to relief, have been fully and satisfactorily established. In cases like this the witnesses relied on must necessarily come from the domestic circle. Ill-usage of the kind imputed to the husband in this case is not generally indulged in while others are present. In the case of Hawkins v. Hawkins, 65 Md. 107, and in other cases, it has been remarked that it is from necessity that members of the family or servants must in most cases like this be called as witnesses. For, say the Court in that case, “ill-usage and cruel treatment of the wife do not generally occur in public places, or in the open face of day.” It appears that the parties to this cause were married in 1880, and that after living together for thirteen years, the plaintiff left her husband, taking with her the three children of the marriage, who were respectively about ten, twelve and seven years of age. The testimony of the plaintiff and these three children, leaving out of consideration all other testimony offered by her, if it is to be received and credited, is amply sufficient to have justified the lower Court in passing a decree of separation. But the testimony of the children is excepted to by the defendant on the ground that they are incompetent to testify by reason of their tender years. After carefully examining the children in regard to their capacity to testify as witnesses in the cause, the Judges below found them to be fully capable, and therefore compe [409] tent, and gave the plaintiff leave to examine them. If this question were properly before us, we would say, from an examination of the evidence, that we entirely approve of the course adopted by the Court below. But it is clear it was within the discretion of the trial Court. 1 Greenleaf on Evidence, sec. 367; State v. Juneau, 88 Wis. 180; 59 N. W. Rep. 580. And the ruling thereon is not therefore the subject of appeal. A large number of other exceptions to testimony were taken below, but as they were not noticed either in the brief or oral argument of defendant’s counsel, we think it unnecessary to discuss them, except to emphasize what was said by the trial Judges in regard to the irregular manner in which most of the exceptions were presented in this case. If it is desired to except to testimony taken before an Examiner, to be used at the hearing of a cause in a Court of Equity, it is sufficient to have the Examiner note the objection (Code, Art. 16, sec. 222), without setting forth the ground on which such objection or exception is based, unless when a question is objected to, because it is leading, in which case the ground of the objection should be stated by the attorney making the objection and recorded by the Examiner, in order that an opportunity may be afforded for changing the form of the question. Under Rule 43, General Equity Rules, adopted by this Court (see sec. 223, Art. 16 of the Code), evidence taken and returned by an Examiner shall remain in Court ten days, subject to exception, before the cause shall be taken up for hearing, unless by agreement of the parties such time be waived. Ample time, therefore, is afforded for the preparation of exceptions, if counsel wish to avail themselves of it. Every exception to testimony must be reduced to writing and filed in the cause, at least before the hearing begins. It will not do, as was done in this case, to except generally to “ all the testimony objected to and noted by the Examiner.” Every exception should clearly indicate the testimony excepted to, the ground on which the exception is based, and the name or names of [410] the witnesses whose testimony is excepted should be set forth. (Decided Feb. 27th, 1895.) Decree affirmed with costs to appellee.