This libel for divorce on the ground of desertion was filed October 19, 1933. In January, 1930, a libel for divorce on the ground of cruel and abusive treatment was filed by the libellant against the libellee, which on February 27, 1933, was “dismissed without prejudice.” A request by the libellant for a ruling that he was entitled to proceed and be heard was denied and the libel was dismissed as matter of law.
The ruling was right. Najjar v. Najjar, 227 Mass. 450. The dismissal of the earlier libel without prejudice does not extinguish the force of its allegations as binding on the libellant. That libel raised a conclusive presumption of fact that the desertion of his wife after that time was with his consent.
Order dismissing libel affirmed.