
    BRUEGGERMAN v. BRUEGGERMAN.
    (No. 5717.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 19, 1917.)
    Divorce <&wkey;184(5) — Review—Discretion.
    Where testimony of plaintiff, if believed, entitled her to divorce, and was corroborated by testimony of her mother, there being nothing to throw suspicion upon the veracity of the mother, refusal to grant divorce without hearing testimony of defendant is an abuse of legal discretion requiring reversal and remand.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 571; Dec. Dig. &wkey;184(5).]
    Appeal from Criminal District Court, Travis County; A. S. Fisher, Judge.
    Action by Wewe Brueggerman against Max Brueggerman. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Wright, Wynn & Harris, of San Angelo, and D. H. Doom and D. D. Pickrell, both of Austin, for appellant. Geo. Mendell, Jr., of Austin, for appellee.
   JENKINS, J.

Appellant brought this suit against appellee for divorce upon the ground of alleged cruel treatment, such as would render their living together as man and wife insupportable. The testimony of the appellant, if believed, showed that she was entitled to divorce. She was corroborated by her mother, and there is nothing in the record to throw suspicion upon the veracity of the latter’s testimony. At the conclusion of the evidence in behalf of appellant the court announced that he would not hear any testimony for the defense, hut would refuse the divorce.

In such cases it is within the discretion of the court to refuse to enter judgment in favor of the plaintiff, but this is a legal discretion and subject to review; and where, as in this case, the testimony is corroborated, and nothing appears to discredit the testimony of the corroborating witness, we do not think that the court could arbitrarily refuse the divorce. It may have been that such action of the court would have been justified had the testimony for the defendant been heard, but it was not.

For the reasons stated, the judgment of the trial court is reversed, and this cause remanded for a new trial.

Reversed and remanded.  