| Ill. | May 12, 1892
delivered the opinion of the Court:
After a patient consideration of the evidence presented by. the record in this case bearing upon the charge of desertion made by the bill, we are disposed to concur with the Appellate Court in the conclusion that such desertion is not proved. The evidence of the circumstances under which the defendant originally left Bellows Falls and moved to Butland in the early part of the year 1886, leaves but little room for doubt that such removal was with the full consent and concurrence of the complainant. While the complainant and both his parents testify that her going to Butland was contrary to the complainant’s wishes and against his remonstrance, the defendant testifies that the removal was first suggested by the complainant and that it received his full approbation, and her testimony is corroborated by that of four other witnesses who testify to statements and admissions made by the complainant while he and his wife were living together in Butland, to the effect that he was well satisfied with her removal to that place, giving as a reason, that his mother made it uncomfortable for his wife at Bellows Falls, and that he and his wife could live together more comfortably in Butland than there. The defendant is further corroborated by the facts, which are not disputed, that the complainant assisted her in making such removal, and actually packed and shipped her goods to Butland after she had gone there, and soon after followed her to that place and lived with her, making. his Borne with her at her parents’, for about two months.
The specific charge of desertion made by the bill, however, is based upon the circumstances of the defendant’s return to Rutland in the early part of September, 1886. It appears that the complainant, after remaining with his wife at Rut-land until the latter part of June, and the employment which he had obtained there failing, concluded to go home to his father’s to help him in his haying. It was at the same time agreed that the defendant, as soon as the busy season of her millinery business was over, which would be about the fourth day of July, should follow him and that she should spend her vacation at Bellows Falls. In pursuance of this arrangement, she returned to Bellows Falls on the third day of July, and remained there, living with the complainant at the house of his parents for about five weeks, when she went back to Rut-land. Shortly afterward, the complainant sent word to the defendant that he would come to Rutland and take her to Saratoga for a short visit, if she would consent to return to Bellows Falls with him. To this she agreed, and after a short trip to Saratoga, both returned to Bellows Falls. She remained there at that time until September 2, and then went back to Rutland. It is probably true that her going to Rut-land at this time was not in accordance with the complainant’s wishes, although he accompanied her to the depot and saw her off on the train. Two weeks later she wrote him a letter, which seems to have been lost, but the contents of which are testified to by witnesses, in which she declared that she had visited Bellows Falls for the last time, and that he would never see her again at that place. Her going to Rutland at that time may be accounted for, and perhaps justified, by the fact that she was engaged, as partner with her sister, in the millinery business at that place, a business which, presumably, required her presence there, and in which she had embarked; as the evidence clearly shows, with her husband’s consent and approval. Her letter in which she announced her determination never to show herself again in Bellows Falls may perhaps be accounted for on the theory that she was still beset by unpleasant recollections of what she regarded as unkind and unfriendly treatment at the hands of her husband’s mother. That, under all the circumstances, it is to be given the force of a declaration of a fixed intention to abandon her husband, may well be doubted. What she meant by it may be better interpreted in the light of her subsequent conduct, than by the strict force and meaning of the. words employed.
But even if it should be conceded that she left the complainant September 2, 1886, with a fixed determination to desert him—a conclusion which in our opinion the evidence fails to establish—such act of desertion, of itself, comes far short of what is requisite to entitle the deserted party to a divorce. Our statute authorized a decree of divorce when either party “has willfully deserted or absented himself or herself from the husband or wife, without reasonable cause, for the space of two years.” However willful the desertion may be, and however destitute of reasonable cause, it is no ground for divorce, unless it is continued for two years. At any time during that period, the offending party has an undoubted right to put an end to it, and if that is done, no cause of divorce has arisen. If at any time during the two years, the party guilty of the desertion, in good faith and with an honest intention to resume marital relations, returns or offers to return to the deserted husband or wife, the continuity of the desertion is broken. For can the deserted party prevent this by refusing to receive back and to resume marital relations with the one guilty of desertion. He or she can not, because the other has taken a position, however willful or causeless it may have been, hold him or her to it. For the two years the door for repentance and return must be kept open, and if it is closed and barred when an offer to return is made in good faith, not only is the desertion terminated, but the circumstances may be such as to reverse the legal attitude of the parties, and constitute the party originally offended against, from that time forth, the offender.
The evidence shows, and upon this branch of the case there is but little apparent conflict, that for several months after the time of the alleged desertion, the defendant made repeated and persistent efforts to return to her husband, but without success, her husband sometimes shunning her, at other times ignoring her presence, and wholly failing, if not directly refusing, to receive her back or to allow her to live with him as his wife. In no view of the case can it be held that the desertion charged was continued for the period of two years.
But we are unable to concur with the Appellate Court in its conclusion that the evidence fails to show that the complainant was a resident of this State for one year next prior to the filing of the present bill. While there are various circumstances surrounding the case tending to awaken a strong suspicion that his residence here was merely colorable; that his only purpose in coming to this State was to apply to one of our courts for a divorce, and that he came with no bona fide intention of establishing a residence in this State, still we are of the opinion that the effect of the evidence in the record is, to prove, at least prima facie, that for one year prior to the filing of the present bill, his legal residence was in Illinois. He came to this State a little more" than two years before said bill was filed, as he swears, with the intention of becoming a resident, and that such has been his intention ever since. It is true that during that time, and particularly during the first year of his alleged residence here, he was absent a considerable portion of the time, on visits to his former home, in Vermont, but he swears, and in this he does not seem to be contradicted by any other witness, that such visits were all for temporary purposes, and that his residence during all the time was in, this State. The place of one’s legal residence is very largely a matter of intention, and the positive testimony of the complainant as to the intention with which he came to this State and has resided here, is not overcome by circumstances which give rise to mere suspicions that his testimony in this respect is false, but present no tangible facts upon which that conclusion can rest. If his residence here were merely colorable, it would be insufficient to give the courts of this State jurisdiction to entertain his bill for a divorce. But as the evidence is sufficient, prima facie, to prove a bona fide residence in this State for the prescribed period prior to the filing of his bill, we are of the opinion that the order of the Appellate Court that the bill be dismissed can not be sustained on the ground of want of jurisdiction in the Superior Court. But on the other ground, viz., the failure of the complainant to prove the desertion charged the bill was properly ordered dismissed, and on that ground the judgment of the Appellate Court will be affirmed.
The appellee, prior to the submission of the cause on final argument, entered her motion to tax against the appellant the cost of an additional abstract of the record which her counsel has deemed it necessary to file in order to a proper presentation of the ease in her behalf, and the decision of said motion was reserved until the final consideration of the case. We have examined the appellant’s abstract filed here, and are of the opinion that it fails to properly or adequately set forth the substance of the appellee’s evidence, and that an additional abstract on the part of the appellee was therefore proper and necessary. But the abstract filed by the appellee in this court is merely the abstract which she had printed and filed in the Appellate Court, she being the appellant there, and as she has already recovered in that court her costs, which included the expense of printing said abstract, there would be no justice in taxing the cost of said abstract against the opposite party a second time. Her motion in that behalf is therefore denied.
Judgment affirmed.