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EFFERT v. EFFERT (01/12/50)

January 12, 1950

EFFERT
v.
EFFERT



COUNSEL

Stuart A. Culbertson, Meadville, for appellant.

No appearance or book for Appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Fine, JJ.

Author: Fine

[ 166 Pa. Super. Page 283]

FINE, Judge.

This is an appeal from an order of court dismissing a libel in divorce charging indignities to the person. The principal complaint of the libellant was that her husband accused her, without basis, justification or provocation, of infidelity and thereby made her life so burdensome and intolerable that she was compelled to leave their common domicile, taking with her their nine months son. No appearance was entered for the respondent. The master, after hearing the libellant and her witnesses, recommended a divorce be granted.

While the divorce proceedings were being heard the respondent filed in the same court his petition for a writ of habeas corpus, seeking custody of their child. Considerable testimony was adduced, much of it impeaching the morals of the wife and mother (libellant), both before and after the separation. When the report of the master was submitted to the court, the judge was constrained by the principle enunciated in Weymers v. Weymers, 82 Pa. Super. 432, to remit the action to the master with instructions to incorporate the testimony

[ 166 Pa. Super. Page 284]

    taken in the habeas corpus proceedings into the divorce record. Pursuant to the court's direction, the master held another hearing, heard more testimony from libellant and her witnesses, but inattentively and erroneously failed to follow the court's order to make the custody testimony a part of the divorce record. It is clear, however, the master read the habeas corpus testimony and the additional evidence offered at the re-hearing, but remained unswerved from his original position, and again recommended a divorce. The lower court, being under the erroneous impression that its order had been complied with, thereupon considered the habeas corpus testimony as a part of the divorce action, reached a conclusion contrary to the master's report, and dismissed the libel.

Of course, neither the master nor the court had any legal right to consider the habeas corpus testimony in this divorce action until it had been properly made a part of the record. Unquestionably, it was considered by both master and court to be a part of the record in this divorce action; this may explain the error but it does not correct it. The action must be remitted. The libellant contends the remission should be restricted to a direction to the lower court to decree a divorce after the reinstatement of the libel. We are not in accord with this position, which seems to be predicated on the assumption that it would be a vain and meaningless gesture to incorporate the custody testimony into the present proceedings. In other words it is her contention that even if the habeas corpus testimony should be considered with other evidence in this action, still the libellant would be entitled to a divorce. On the contrary, we think there is ample testimony in the habeas corpus action, if believed, to defeat a divorce decree.

At the outset the libellant may well be reminded that because her testimony stands uncontradicted, in the absence of the habeas corpus testimony, it need not be

[ 166 Pa. Super. Page 285]

    considered credible evidence. Triers of fact are not required to believe uncontradicted testimony, ...


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