Opinion
1 Div. 488.
May 10, 1928.
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
George A. Sossaman, of Mobile, for appellant.
Where all the testimony is by deposition, there is no presumption in favor of the finding of the trial court. Code 1923, § 10276; Heflin v. Heflin, 216 Ala. 519, 113 So. 535. The uncorroborated, but uncontradicted, testimony of the complainant, if believed, is sufficient to justify the granting of a divorce. Apperson v. Apperson, ante, p. 157, 115 So. 229. It is not necessary that the act of adultery be proven by direct testimony as to the act, but it is sufficient that the circumstances proved are such as would lead the guarded discretion of a just and reasonable man to the conclusion that the act had been committed. Morrison v. Morrison, 95 Ala. 309, 10 So. 648.
Foster K. Hale, Jr., of Mobile, for appellee.
Brief did not reach the Reporter.
While a charge of this character need not necessarily be directly proven and can be established by circumstantial evidence, the circumstances proved " 'must be such as would lead the guarded discretion of a reasonable and just man to the conclusion' that the act has been committed." Morrison v. Morrison, 95 Ala. 309, 10 So. 648. The evidence in this case, consisting only of the complainant's deposition, has been read and considered by the court in consultation, and we do not think that it is so certain and specific as to warrant us in holding that the respondent is guilty of the act charged, and the trial court did not err in denying the complainant relief.
The decree of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.