THE MEWHINNEYS.

Dominion, Volume 4, Issue 1196, 3 August 1911, Page 2

THE MEWHINNEYS.

APPEAL CASE. WE CANNOT PERMIT ANY OF THIS. . SHARP PASSAGES. APPELLANT GIVEN" LATITUDE. Further hearing of the appeal cafe Mc- | whinncy v. Mewliinney was taken in the . Court of Appeal yesterday, before their Honours Mr. Justice Denniston, Mr. Jus- , tico Chapman, and Mr. Justice Sim. The , appeal is against an order of the Chief Justice (Sir Robert Stout), giving custody , of the two children of" Mr. Mewliinney, - who, in March, 1910, obtained a decree nisi against her husband. ■ The. facts of ■ the case (from the beginning of the di- \ vorce proceedings onwards) were outlined ' in yesterday's issue. The appellant (Oli- ' ver Mewliinney) lias now conducted his . own case before the Court of Appeal, and Mr. A. Gray has been appearing for the respondent, Nettie Lena Mewliinney. When tlio Court resumed,' Oliver Mewhinney proceeded with his address, and ; continued to comment on the evidence , given in the case, contrasting the evi- , donee of witnesses of the other side with . the affidavits of independent witnesses. He was about to mention something about 1 Mrs. Mewliinney, when he was interrupted by his Honour, 'Judge Denuiston. His Honour: You had better uuder- • stand at once that you must not mention [ anything that is not in evidence beforo [ the Court before you make any offensive reference to any person. Appellant: Well, it is well that I should t make my position clear to your Honours, : because only one side of the caso was heard,-owing to an arrangement. I Mr. Justice Denniston: You must deal [ with the facts as they are beforo us. ' Appellant retorted that he would endeavour to prove from the evidence that there was an arrangement. Mr. Justice Denniston: What do you mean by an arrangement? Appellant: I would prefer to leave it to your Honours yourselves. Mr. Justice Denniston: No cases are t arranged, Mr. Mewliinney, and we.can- . not hear about any arrangement. , Appellant was proceeding farther on the point, when Mr. Gray objected, and appellant was again told that ho must confine himself to the evidence. Kcfer- [ ring again to Hie notes, Mr. Mewhtnuej asserted- that they were only a precis. Mr. Justice Denniston: Whether or not, it is all that is before us. You must un- , derstand that. '. "We Cannot Allow You to Criticise." Appellant continued, and, later on, referred to an order that the Chief Justice had made at the time of the decree nisi in regard to the custody of the children. He was quoting from the printed case when Mr. Justice Denniston drew his at-' tention to the fact that no order had . been made at that time at all, and, what wau being quoted, was merely part of a suggestion by the Chief Justice. A little'later Mr. Justice Denniston informed appellant that the only point which ho (appellant) had to establish was that Hie decision of the Chief Justice was wrong, in that (oa the material before him) he should have found that Nettie Lena Mewliinney was not a (it person to have charge of the children. Appellant then made reference to something that had happened ia IUO9, but was ruled out again, as this was antecedent to the divorce proceedings,' and lie was again stopped when he wished to read a statement that had not been put in as evidence in the Court below. Appellant then remarked that all he asked was that the children should receive every consideration, and he was assured by the Bench that every consideration would be given them. Before he had proceeded much further, he was again checked for commenting on the Chief Justice's conduct of the case, "We have allowed you considerable latitude," said Mr. Justice Denniston, "but we cannot allow you to criticise the conduct of the Chief Justice in this case." "The Chief Justice did something that was quite proper," added Mr. Justico Chapman. Mr. Justice Denniston: He was simply laying down the law on a point, which your_ counsel very properly submitted t<, as right, but which you in your ignorance, cannot see was right. "This Will Never Do." Appellant then continued his commentary of the evidence-with an endeavour to show that his wifo deserted'the children in 1907. He also proceeded to indicate liis reasons for originally removing tlio children, and read a letter from himself to his wife which stated his reasons for living apart i'ronv her at that time. He then came on to the time when ho was imprisoned for contempt of Court and, in referring to that portion of the proceedings, asked if lie would be allowed to read some letters. Mr. Justice Denniston: What letters are they? Appellant: Letters between the Chief Justice and the Women's Protection Society. Mr. Justice Denniston: This will never do. We cannot permit anything of this. Appellant: Well, I just wish.to say this Mr. Justice Denniston: Well you must not say anything on the point wo havo just ruled on. Appellant: Well, your Honour, it is very hard for a layman to decide Mr. Justice Denniston: You are not asked to decide. . ' Appellant: A remark wus made by Mr. Justice Edwards-— Mr. Justice Denniston: We don't want to hear any remark. Appellant: Well, i am in a verv delicate position, and may as well walk out. Mr. Justice Denniston: You have no right to make any observation of that sort. If you show a tendency to evade the ruling of the Court, we sliall havo to do something else. Appellant: I didn't catch what you said your Honour. ' Mr. Justice Denniston: You must not allude to any of these matters not within tho case. You must make no further references to those matters. Appellant: But' your Honour is prevoi-K ing me' from getting at tho crux of the question. Mr. .Justice Denniston: If you persist any further on that point, the Court will take immediate action. , The Court will not bo trifled with, Mr. Mewliinney Appellant: 1 wish to put a supposititious case Mr. Justice Denniston: Well, vou have no right to put a supposititious ca«e And, if yon make any further allusion to the matter after the direction the Court has given you, the Court will take very definite action. Appellant: Then I can't show the whole cause of tho trouble? Mr. Justice Denniston: You must not proceed on that point. Appellant: But that is the whole pointon which I appealed. Mr. Justice Denniston: That will Ao ■ Mr. Mcwhinnc-y. If y OU proceed ™ further the Court will take serious steps • The Court will refuse to hear vou for one thing. * ur Judge Calls it "Mere Rhetoric." [ After a brief pause, appellant remarked hat he was a a loss to know quite how ' to proceed, and-he asked: "Am I in or( j er ' in asking for an adjournment?" ■ Mr. Justice Denniston (after conferrine with the other members of the Bench)- ' Can you give us a definite reason? ( Appellant: I don't care what happens ■' to me if 1 can do something for the=o 3 children. " ( Mr. Justice Denniston: That is mere rhetoric. The Court does not want to hear any of that. The Court desires you to proceed with your case. Appellant: It is very sincere, your ' Honour. I submit that it would be liighly improper to leave these children with their mother for medical Teasons. Wo say that she is suffering Mr.- Justico Denniston: You havo no right to reflect on .Mrs. Mcivhiiiney. Appellant: Not even if I have ground ( for reflecting? • 'Mr. Justice Denniston: We can't bear \ you on any medical reasons not before the Court. It would be a most improper , thing to allow you to introduce charges against your wife except on -material W- , fore the Court—most improper to even i permit you to refer to them. * The case then proceeded in smoother t vein for a few minutes, but appellant j was checked more than once before the [ luncheon adjournment, and, on oho occa- \

siou, Mr. .Tustico Chapman remarked: "It can't be disguised that you have made several attempts to evade the ruling of the Court. You have a strong motive for doing so, but ynu are not doing yourself niiy goad." In (lie afternoon appellant continued his address to tne Court, mainly in an endeavour to emphasise that the judgment of tho Chiot Justice in re tho-cus-tody of the children was not for the wollarc? of the children. He contended that Mrs. Mcwhinu:>.y was not n proper person to have control of the children, that the house where she lived was not a lit place for them, and that Seatoun, for many reasons was not a suitablo place for them to live. Respondent's Side of the.Case. Mr. Gray, for the respondent, Nettio ■ Lena Mewhinney, said that when the eato i was first before the Court in the divorce - action several charges had been made against her by way of answer from the respondent, but they had )x>en abandoned. Misconduct on (he part of Mrs. i Mewhinney had not been proved. ' All ■ that was contained in the evidence was a suggestion of misconduct made by coun- ' sol to Mrs, Mewhinney in the course of I cross-examination. On tho other hand ■ there were affidavits by persons of un- > doubted integrity, neighbours of the , Mowhinneys when they lived together, to • the effect that Mrs. Mewhinney was a woman of good character, and an ex- • emplary mother. Not only had Mewhin--1 ney not proceeded with his charges at i the time of the trial, but he had failed to . call evidence on them when the case was i before the Court on the second time. Sev- . oral affidav:'s offered as evidence had, nil : but two, been removed from the file on • Mrs. Mewhinney's application on the ground that they were scandalous, irrele- • vant, and an abuse of the process of the i Court. One of the remaining ■ affidavits i was in reference to Mrs. Mewhinney stopi ping at the same hotel in Dunedin as a man whom sho knew. Sho had given a 1 satisfactory explanation for her .visit to Dunedin. It was to look for her chili dreu. Whether her action was prudent or not was one question, but it could not [ be siiid 'that it' was wrong. She was young and impulsive, and hei conduct . could scarcely be judged ou the same ; standard as that of a young married woman living happily with her husband. L She was free from her husband, and, according to the evidence, tho man whom she had met in Dunedin was a perfectly honourable man. At the worst the evi- , donee only disclosed indiscretion on her part. Mr. Justice Chapman here remarked that Mrs. Mewhinney hart not explained I very satisfactorily who this man (Mr. . 'Lamb/ was. She appeared to have met him by accident. Mr. Gray replied that he was quite unprepared at the time that the matter was mentioned at the hearing. He know no- ' thing more of this Mr. Lamb than had been mentioned in tho evidence. Mr. Justico Chapman: It is strange that the matter was not cleared up. Mr. Gray again repeated that he knew ', nothing more than what was in the evidence to the effect that she first met him 1 in Wellington when sho had a bicycle I accident on the Hutt Road, and she met '- him in Dunedin when leaving a hotel (where she was not comfortable) to go to ; another. At the hotel they had lx?en ' known as brother And sister, Mrs. Me- ' whinney being known as 'Mrs. Gilmour." Mr. Justice Chapman: There conies a ' time for candour. It is strange that she never told anyone who Mr. I.amb was. 1 Mr. Gray. I assure your Honour that I know nothing more than what I say. Mr. Justice Chapman: And I believe that, Jlr. Gray. ■ Reference was then made to the evidence of one M'Kechnie, that Mr. Lamb had taken a cup of cocoa to Mrs. Mewhinney's bedroom. Mr. Gray pointed out that this had been denied by Mrs, Mewhinney. Mr. Justice Denniston: But that does not altogether disprove it. There was another way of disproving it. Their Honours all expressed tho opinion that the circumstances were certainly suspicious. Mr. Gray proceeded to deal with the evidence of different witnesses,'and contended that there was nothing sufficient ta show that Mrs. Mewhinney had been guilty of such misconduct as would disqualify her from being given custody of tho children. Mewhinney had neglected the opportunity to bring forward any other evidence if he had it to bring forward. Mr. Justice Denniston said that there appeared to have been a reason for this. At the trial there seemed to have been a compromise between, the parties. Th< ; learned judge had probably acquiesced in the dropping of the charges against Mrs. Mewhinney, as there was no particular object, in pressing them. Doubtless it had not occurred to him to inform Mewhinney that the charges, if proceeded with, might have some bearing on the question of determining the custody of- the children. Mr. Gray quoted a number of authorities jn support of his contention that Mrs. Mewhinney had clearly established her right to have the custody of the children, and that appellant had given no good reason why tho order of the Chief Justice should be set aside. Mr. Gray concluded shortly before half-past i. o'clock, and, after the appellant had replied, their Honours reserved decision.''