Anderson v. Anderson

HARRISON, P. J.

In his complaint the plaintiff alleges as his cause of action the extreme cruelty of the defendant, setting forth divers acts thereof, all of which were denied by the defendant in' her answer, and in addition thereto she filed a cross-complaint charging the plaintiff with extreme cruelty, for which she asks a decree of divorce in her favor. Upon the trial the court found that “all of the allegations and averments in the complaint as to defendant’s cruelty are true, and all the denials, allegations and averments in the answer and cross-complaint having reference to plaintiff’s cruelty toward defendant are untrue,” and directed an interlocutory decree of divorce to be entered in favor of the plaintiff and against the defendant. The defendant moved for a new trial upon the grounds of irregularity in the proceedings of the court, by which she was prevented from having' a fair trial, and that the evidence was insufficient to justify the decision of the court. This motion was presented and heard upon a statement of the case and affidavits of the defendant and her daughter properly authenticated in a bill of exceptions. The motion for a new trial was denied, and from this order and from the judgment the defendant has taken the present appeal.

It is shown by the affidavits that after the evidence on behalf of the plaintiff had been given the defendant was called as a witness, and testified in her own behalf, and that before she had concluded her testimony, and while she was still on the witness-stand she was interrupted by the court and informed by him that she had testified enough; that the court then and there, before she had concluded her testimony or left the witness-stand, granted the plaintiff a divorce and denied the prayer in the cross-complaint; that upon her counsel objecting thereto and informing the court that he had other witnesses in court, the judge informed him that he had the privilege to appeal to the supreme court.

In the statement of the case which was settled by the judge it is shown that after the plaintiff had rested his ease the defendant offered herself as a witness on her own behalf, and

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after having given testimony in contradiction of much of the testimony of the plaintiff, and before her testimony was concluded, the judge interrupted her saying, “That is enough. Let an interlocutory decree for the plaintiff be entered”; and upon her counsel stating to the court “We have other testimony here,” the court replied, “I do not care for it at all; take your exception; take your interlocutory decree.”