Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1902-06-10
CASE AFFIRMED.
Supreme Court Affirms Lower Court
in Divorce Case of Clopton VS.
Clopton.
Celebrated Divorce Case that Has
Been in State Courts for Several
Years.

The supreme court has handed down
a decision affirming the judgment Of
the lower court in the divorce case of
w. C. Clopton VS.. Josephine Clopton.
Clopton was a wealthy New York law
yer and clubman, and was granted a
divorce by Judge Winchester at Man
dan. The decree was afterward set
aside. and then r~e-established. An
appeal was once before taken to the
supreme court on technical grounds
but the court sustained the lower
court and a second appeal was then
taken from the Judgment granting the
decree. This is the appeal just de-
cided by the court. The following is
the syllabus of the decision:
This action was brought to obtain
a divorce from the bond Of matrimony
upon the ground of extreme cruelty.
Defendant appeared by attorney, who
served and filed an answer to the COM
plant, which admitted the marriage
and denied all other allegations of the
complaint. After issue was Joined
the trial court, upon the written con-
sent of counsel, by its order, referred
the case to a referee with directions
to take testimony and report the same
to the court; and thereafter said ref
cree took the testimony and reported
the same to the court, but did not
make or report any findings in the
case. Held, that such reference was
property made, despite the fact that
the statute (Article I. Code of Civil
Procedure) does not in terms author
ize such a limited reference. In di-
vorce cases the jurisdiction is of statu-
tory origin but the procedure, unless
the statute otherwise directs, is that
which obtains in courts of chancery.
In such courts the authority to require
a master or a reference to take and re-
port the evidence either with or, with
out findings, is inherent. w
Held, further, such reference having
been consented to, that council cam
not object to the same for the first
time in this court.
The fact of the intermarriage of the
parties was alleged in the complaint,
admitted in defendants answer and tes-
titled to by the plaintiff, but such tes-
timony was not corroborated. Held,
section 2757, Revised Codes of 1899,
that said testimony of the plaintiff did
not require confederation.
Evidence examined and Held. that
the plaintiffs residence in this state
in good faith for ninety days prior to
commencing this action. is established;
and that the plaintiffs testimony as
to such residence is sufficiently sup
ported by corroborating evidence.
The plaintiff testified fully and in de-
tail to the facts alleged as grounds of
action and also to the results produced
upon his health by the alleged extremt
cruelty of the defendant and testified
also that he consulted a physician and
took medical treatment as a means of
obtaining relief from bodily ailments
caused by the cruel and inhuman treat
ment he received at the hands of the
defendant. This testimony was cor
%roborated by the physicians who
treated the plaintiff for the bodily all
ments which the plaintiff stated to his
physician was caused by the strain
and worry arising from his domestic
troubles. Held, that the testimony OF
the physicians was competent under an
exception to the rule excluding hear
say evidence and that such testimony
constituted confederation within the
meaning of section 2757, supra.
The statute requiring corroboratine
evidence in support of the statements
admissions or testimony of the parties
voices a rule of ancient origin and the
purpose of the rule is to guard against
the evil Of granting collusive divorces
Accordingly it is Held, where the ele,
ment of collision is excluded that the
reason for the rule falls and in sucl
cases while there must be corroborat
ing evidence to satisfy the statute
such evidence need not extend to every
feature of the matrimonial offense
The degree of confederation is no
defined or specified in the statute
Said statute is adopted from the cod,
Of California and the a~djudications o
that state constituting the same ar,
adhered to in this case.
Defendant appeals from a judgmen
district court of Morton county, w, II
Winchester, judge.
Cochrane & Corliss and E.. c. Rice
attorneys for appellant.
Newman, Spalding & Stambaugh, at
~torneys for respondent.
Opinion by Wallin, G. J.
The Clopton case was one Of tn,
sensations in Gotham when frs
brought. Josephine Clopton, the de
II pndanf. was nriOT, fo har mo r,.;o a.