JOHN C. STEDMAN, Appellant, v. LILLIE STEDMAN, Respondent, 179 Cal. 288

WILBUR, J. Plaintiff appeals from a judgment denying him a divorce after default of the defendant. Respondent files no brief. The complaint charges desertion after forty years of married life, and the defendant, appearing as a witness in pursuance of a rule of court requiring her to be subpoenaed, testified circumstantially to her desertion of the plaintiff. That on January 24, 1914, she had left the house and had taken a large part of the furniture, and that she intended to desert the plaintiff and that she desired that plaintiff be granted a decree.

The plaintiff also testified to the circumstances of the separation. Both witnesses, if believed, established desertion. The testimony of both, however, was insufficient without corroboration to entitle the plaintiff to a decree. (Civ. Code, sec. 130.) Three witnesses were called by the plaintiff in corroboration and one testified that he called at plaintiff’s house two days after the alleged desertion and that it looked “pretty vacant.” A neighbor testified that he saw defendant moving some furniture out of the house.

A son of the parties testified that in response to a telephone from a neighbor he went to the home of plaintiff and found him alone and ill, the house scantily furnished; that he took his father, the plaintiff, home with him, and that the plaintiff and defendant had not lived together from that time (more than a year before the complaint was filed).

It appeared from the testimony of the plaintiff that the youngest son and the daughter of the parties were living in the house at the time of the separation, were present at the time of the separation, heard what transpired between them, and went away with the defendant. It further appears from the transcript that another divorce action had been tried between the same parties, before the judge who tried this action, and that a decree had been denied two days before the alleged desertion upon which this complaint was based.

The files in the former suit were introduced in evidence, but are not set forth in the clerk’s transcript as required by law. Findings of fact were filed by the court, deciding that defendant did not desert or abandon the plaintiff without fault on his part or at all. “On the contrary, he did not want to live with her any more than she wanted to live with him.” According to the transcript, at the close of the case the judge said: “I do not think the evidence is sufficient here to warrant a decree. In the first place, the circumstances are not shown, and the only two witnesses who could tell anything are not here.

It is easy enough to get them here, and they are not brought. It was a simple fact about the way the people lived before there was a suit pending and both of them hung on to the same house and both of them wanted to live in the same house, although they were fighting and scrapping at [all] the time, and the situation was such that she would not speak to him.

Now, I passed on that, and decided in that other ease that up to that time there was no desertion, and I do not think the fact that people have ¡been living the way they lived," occupying separate parts of the house, proves desertion.” Notwithstanding the statement of the court that he was influenced in his decision by the failure to produce the evidence of two witnesses to the separation whose attendance could be readily secured, and the other witnesses testified to the mere fact of separation, no offer was made to secure the attendance of such witnesses. x This case illustrates the difficulty presented by our present divorce laws, which throw upon the trial court the duty of protecting the public interest by preventing divorce an<^ also the duty of weighing the testimony'as a judge.

The whole matrimonial difficulties of this couple, who should have been celebrating the fortieth anniversary of their wedding instead of seeking a divorce, had been tried out in an adversary proceeding, but two days before this alleged desertion occurred, and the same judge is now confronted by the parties seeking a new divorce on a new grotind. Unless we are prepared to hold that testimony barely sufficient, when taken at its face value, requires the court, in the absence of conflicting testimony, to grant a divorce, the judgment must be affirmed.

The trial court is the exclusive judge of the credibility of witnesses, and is no more required to believe two witnesses than one, and we are to assume that the court did disbelieve these witnesses, particularly in view of the fact that their testimony alone is made by law insufficient, and weak corroboration was offered where stronger evidence was possible. The court was bound to presume under the circumstances that their testimony would be unfavorable, and was for that reason suppressed. (Code Civ. Proc., sec. 1963, subds. 5, 6; sec. 2061, subds. 6, 7.) Judgment affirmed. Melvin, J., and Lorigan, J., concurred,