
    KIRK v. KIRK.
    Wbeve there is no evidence on which to base some of the findings in favor of plaintiff in >an action for divorce, the decree will be reversed.
    (Opinion filed, Dec. 1, 1909.)
    Appeal from- Circuit Court, Charles Mix County. Hon. Joseph W. Jones, Judge.
    Action by Amy B. Kirk against George E. Kirk. Judgement for plaintiff, and defendant appeals.
    Reversed.
    
      Adam Grimes and Joe Kirby, for appellant. G. P. Harbin, for respondent
   WHITING, J.

This is a divorce action, and was tried to the court; Hon. Joseph W. Jones presiding. The court made findings favorable to the plaintiff, and, a decree having been entered and a new trial denied, the defendant has appealed.

The complaint herein contains most serious charges against the defendant, and the court has found said charges to be established. The defendant has assigned as error the insufficiency of the evidence to support the findings. The evidence is of such a nature that we feel justified in not quoting the same herein. Suffice to say that, while the evidence of plaintiff tends to prove some of the charges set forth in the' complaint, it is utterly insufficient to establish many of the matters found by the court. In fact, there is absolutely not a word of evidence which by any stretch of imagination could be held to support some things found by the court. Thus, while we might, by disregarding defendant’s evidence, find sufficient to sustain the granting of the decree herein, yet we do not feel that it is the province of this court to attempt to support the decree in such manner. If counsel for litigants, in preparing findings, so utterly disregard the evidence in the case as the findings show was done in this case, or if the trial court, through some oversight, itself prepares findings so utterly unsupported by the record, we believe it pur duty to send the cause back, that it may be tried again and be determined in accordance with the testimony that may be offered.

The judgment of the trial court and order denying a new trial are reversed.

HANEY, P. J., dissents.  