Bishop v. Bishop ( 1924 )

Hines, J.

John Bishop filed his libel for divorce against his wife, Alice Welch Bishop, on the ground of willful and continued desertion for more than three years. On the trial of the case he testified to their marriage, the willful and continued desertion of himself by his wife for a period greatly exceeding three years, and that he was a resident and citizen of this State for more than twelve months before the filing of this suit. On his cross-examination, counsel representing the wife asked him if he had not, on May 19, 1908, been married, to one Della Wadsworth at Tumberlm, Lake [Lonoke?] County, Arkansas. The court instructed the witness, if he saw fit, he could decline to answer the question, if it tended to incriminate him; the court further saying to the witness that he was under oath, sworn to tell the truth, and that the court wanted his answers to be truthful. Counsel for the wife again repeated the question substantially to the witness, but stated in addition the name of the justice of the peace who performed the marriage ceremony, the name of the county clerk who issued the license, and the date thereof. The husband stood mute. This colloquy then took place: By the court: “What do you say, Mr. Bishop? Either answer the question or state your reason for not answering it. Do one' or the other, Mr. Bishop, and let’s get along.” Witness: “What do you want me to answer?” The court: “Bead him the question.” This was done. The court: “Answer the question or else state your reason for not answering it.” Witness: “I told you,” and here the witness stopped. The court: “I will dismiss your case, if you don’t do one or the other.” After waiting a few minutes, the court said: “Well, take an order dismissing his case. Let me see the paper you have in your hand, Mr. Steed,” the latter being the attorney for the wife. The paper referred to was a marriage license issued by the county clerk of Lonoke County, Arkansas, dated May 18, 1908, and authorizing the marriage of John Bishop to Della Wadsworth, with the certificate of a justice of the peace that on May 19, 1908, he had solemnized the marriage of these parties. This document was not offered in evidence by either of the parties, but was introduced in evidence by direction of the court. Thereupon the court passed an order dismissing the suit; to which judgment the plaintiff excepted on the ground that it was contrary to law, in that the case, under the evidence, should have been submitted to the jury.

The headnotes need not be elaborated.

Judgment reversed.

All the Justices concur.