Kuhl v. Kuhl , 160 Mo. App. 363 ( 1911 )

CAULFIELD, J.

(after stating the facts). — The plaintiff makes three assignments of error which we will treat of in their order:

I. Plaintiff contends that the court erred in not granting plaintiff a decree of divorce at the conclusion of the first hearing in the cause. Plaintiff’s counsel does not disclose wherein this error lies. It was certainly not error for the court to take the case'under advisement and postpone its decision to a later day, and if it had been plaintiff did not preserve the point by excepting to such action. And it was not error to set aside the submission and admit testimony after the case had been closed. It is a matter of discretion with the trial court to admit or exclude testimony after a case has been once closed, and such discretion will not be interfered with except in case of its manifest abuse. [Pearce v. Dansforth, 13 Mo. 360; Roland v. Beshears, 54 Mo. App. 227.]

'/Under this assignment plaintiff’s counsel in his brief states as his first point: “Where a petition for divorce states, a cause of action and the evidence offered is nncontradicted and substantiates the allegations of the petition, plaintiff is entitled to a decree of divorce as a matter of right, and it is the duty of the court to grant it.” We need not pause to determine the exactness of that statement. The statute expressly provides that “in all cases where the proceedings shall be ex parte, the court shall, before it grants the divorce, require proof of the good conduct of the petitioner, and be satisfied that he or she is an innocent and injured party.” [Sec. 2378, R. S. 1909.] Now in this respect the court was not concluded by the allegations of the petition nor by the default, and it was perfectly proper for it of its own accord to elicit facts bearing on the conduct of plaintiff. [Grenzebach v. Grenzebach, 118 Mo. App. 280, 94 S. W. 567.]

II. The plaintiff next assigns as. err or the action of the trial court in dismissing her bill at the conclusion of the second hearing. The argument of her counsel indicates that he means by this that the evidence of misconduct was not sufficient to justify the court in denying the divorce. This position is clearly untenable. The actions attributed to plaintiff by the witnesses were specific and, remaining unexplained, were entirely inconsistent with good conduct and innocence on her part. She had ample opportunity to explain her actions or to deny that she was guilty of them and failed to avail herself of it. It was the clear duty of the court to deny her a divorce under the circumstances.

III. Plaintiff next contends that “the court erred in excluding plaintiff’s counsel from participation in the examination of the witnesses summoned and examined by the court of its own motion at the second hearing of the cause.”

The court did grant counsel the privilege freely to cross-examine the witnesses and he declined to avail of it. Plaintiff complains, however, under this head of the action of the court in refusing to receive and pass upon objections to questions being propounded by the court to the witnesses. Such refusal cannot serve as a cause for a reversal of the judgment herein because plaintiff fails to point to any testimony which should have been excluded upon proper objection, and we are satisfied that the misconduct causing a denial of the divorce was established by testimony of an unobjectionable character. [Tarrant v. Tarrant, 156 Mo. App. 725, 137 S. W. 56.]

The judgment is affirmed.

Reynolds, P. J., and Nortoni, J., concur.