Banks v. Banks

Citations

• 118 Miss. 783
• 79 So. 841

Syllabus

<p>1. Divorce. Recrimination. Character of proof.</p> <p>The rule is well established that to defend a divorce on the ground of recrimination, the offense charged against complaintant must be established by the same character of proof that it would take to grant a divorce, were the defendant the complaining party, and no defense charged against the said complaining party.</p> <p>2. Divorce. Recrimination. Character of proof.</p> <p>Where adultery of the complainant is set up by the defendant, as a defense in a divorce suit, and such defense is sought to be proven by circumstantial evidence, the circumstances must be proven with reasonable certainty, and the circumstances so proven must be such that the conclusion sought to be established follows logically from the facts. If there are two or more reasonable theories which may be drawn from the facts proven, the proof will be insufficient, because to invest mere circumstances with the force of truth, the conclusion must not only be logical, and tend to prove the facts charged, but must be inconsistent with a reasonable theory of innocence.</p> <p>3. Divorce. Adultery. Evidence.</p> <p>Under the facts in this case, as set out in its opinion, the court held that the evidence was insufficient to establish adultery by the complainant.</p> <p>4. Divorce. Restricting proof to pleadings.</p> <p>In a divorce suit where the defendant charged adultery of the complainant, as a defense, the proof should be restricted largely to the pleadings, and parties not be required to run the gauntlet of all rumors of a community pertaining to his life and character, at least without notice and preparation to meet such charges and evidence.</p> <p>5. Evidence. Circumstantial evidence.</p> <p>Acts may be established by circumstances, but the circumstances must be those within the personal knowledge of the witnesses.</p> <p>6. Divorce. Appeal. Incompetent evidence. Presumption of effect.</p> <p>Some latitude should be allowed a chancellor in a