Anonymous , 35 Ala. 226 ( 1859 )

STONE, J.

It is urged in support of the chancellor’s action, in refusing to direct that the defendant should submit her person to a medical examination, tó be conducted under the order of the court, that she (the defendant) was a non-resident — was not subject to the order' of the court — and that the order, if made, could have accomplished'nothing, unless the'defendant had" voluntarily submitted to it; in other words, that the court had no power to compel the defendant to comply with such order, she being beyond its jurisdiction. It is not our purpose, in this'opinion, to commit ourselves either for or against this proposition. Possibly, in ‘ cases like the present, where all imputation of collusion is excluded, the court, as a means of coercing obedience to its orders, might suppress the defendant’s testimony, derived from an ex-parie examination. "We simply state this proposition, however, for the purpose of saying we do not decide it. — See Newell v. Newell, 2 Paige, 25.

In the present ease, interrogatories were propounded, at the instance of defendant, to Drs. Hays and Erierson, which were of a character to give notice that the defendant had been,the subject of a medical examination, and that in such examination some instrument or instruments had been used. The character of the disease under whicfy it was alleged she was laboring, would naturally indicate the instrument that was probably used. These interrogatories were served on the complainant’s solicitor, and were crossed by him. He also, under the rule in such cases, demanded notice of the time and place of the execution of the" commission, which was given to him. The testimony was taken ; both parties, as we infer from the caption, being present, or represented. All the testimony being returned to the court, it was published by consent. After this, the complainant moved the court for an order requiring the defendant to submit to a professional examination, which motion the court overruled. This decision of the court is assigned as error. Without assigning any other reason for our opinion, it is a sufficient answer to this assignment of error, that after publication has passed, it is a matter of discretion with the chancellor, whether he will grant to either party leave to take further testimony in the cause ; and that the exercise of this discretion is not revisable in this court. — Rule of Practice, No. 7. 24 Ala. X; 2 Dan. Oh. Prac. 1136-7; Wood v. Weaver, 2 Sumner, 316; Hammersley v. Brown, 2 Johns. Ch. 428 ; Underhill v. Van Cortlandt, ib. 339 ; Moody v. Payne, 3 Johns. Oh. 294; Cummings v. Grill, 6 Ala. 562; Evans v. Bolling, 5 Ala. 550; Bryant v. Peters, 3 Ala. 170; Wyatt v. Magee, ib. 94 ; Pl. & Mer. Bank v. Walker, 7 Ala. 926 ; McLane v. Riddle, 19 Ala. 180 ; Michan v. Wyatt, 21 Ala. 813 ; Lanier v. Driver, 24 Ala. 149.

[2.] In the trial of the issue joined in this case, the chancellor had the option of sending it to a jury, or of pronouncing upon the evidence himself. His refusal to refer the question to a jury, presents no revisable error. Code, § § 3001-03 ; Kennedy v. Kennedy, 2 Ala. 571, 626, and authorities; Atwood v. Smith, 11 Ala. 894, 910-11; Alexander v. Alexander, 5 Ala. 517 ; O’Connor v. Cook, 8 Vesey, 535 ; 2 Dan. Ch. Prac. 1289.

[3.] Having attained these conclusions, the only remaining inquiry necessary for our consideration is, was the defendant, at the time of her marriage, “ physically and incurably incapacitated from entering into the marriage state ?” — Code, § 1961. In announcing our answer to this question, we need not, and do not, question either the skill or the credibility of complainant’s witnesses. They did, and could, only give their professional opinion, as experts, on the nature and curability of her disease. No one will pretend that such opinions are infallible guides to one in search of truth. In the present case, it is proved beyond all question, by the witnesses Hays and Frierson, that the complainant’s witnesses, Pillow, Kyle and Crittenden, were in error, when they formed the opinion that the defendant’s disease was incurable. They testify, in a clear and satisfactory manner, that she had been cured; and that at the time of their examination, which was less than two jmars after the marriage, she was in perfect health. We need scarcely add, that the fact of a cure demonstrates the error of any opinion that the disease was incurable. — Devanbagh v. Devanbagh, 5 Paige, 554; S. C., 6 Paige, 175 ; Bishop on Marriage & Divorce, §’§ 228-35 ; Poynter on M. & D. (3 Law Lib.) 123, et seq.; Shelf, on M. & D. (23 Law Lib.) 201, et seq.; Rogers’ Eccl. Law, 561-2; Brown v. Brown, 1 Hagg. 523, (3 Eccl. Rep. 229;) Briggs v. Morgan, 3 Phill. 325, (1 Eccl. Rep. 408;) Welch v. Welch, 2 Lee, 578, (6 Eng. Eccl. 252;) Bascomb v. Bascomb, 5 Foster, 267; Ferris v. Ferris, 8 Conn. 166. The decree of the chancellor is affirmed.

R. W. Walker, J, having been of counsel, does not sit in this case.