The opinion
DISSENTING OPINION.
By Waldo, J.
The maxim audi alteram partem, should be construed in this case to require imperatively that the evidence the appellant had to offer should be heard. The law favors trials upon the merits (Critcher v. McCadden, 64 N. C.,) and especially so in suits for divorce, which is not a matter wholly of private concern, but the public are likewise interested in preventing divorces, except for adequate cause; and whether there is good cause or not, can only be properly determined by hearing both sides.
The reasons offered by the appellant why she failed to offer evidence in her defense, explains her conduct, and exonerates her from blame, if her delay needed any explanation where, before a decree, she asked to be heard. The order of the court denying her motion to be heard seems plainly erroneous, and to call for reversal. The discretion of the court, as is well said in Bailey v. Taaffe, 29 Cal., 424 , “ is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion to be exercised ex gratia, but a legal discretion to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impair or defeat the ends of substantial ' justice. In a plain ease, this discretion has no office to perform, and its exercise is limited to doubtful cases, where an impartial mind hesitates.” See further, 23 Maine, 12.