-I. Thе appellant’s petition is in two counts. In one count, he seeks to recover damages frоm the appellee for alienation of the affections of appellant’s wife. In a separate count of his petition, the appellant seeks to recover for damages for criminal conversation between the appellee and appellant’s wife. The appellee answered the said counts of the petition by alleging that the appellant wаs barred and estopped, under Section 3181 of the Code, from maintaining either of said alleged сauses of action, for the reason that, after the alleged causes of action arose, the appellant’s then wife obtained a divorce from the appellant. A demurrer to the allegations of the answer was overruled.
Section 3181 of the Code provides:
*820 “When a divorce is decreed the guilty party• forfeits аll rights acquired by the marriage."”
In Hamilton v. McNeill,
In Wood v. Mathews,
“We think, however, that we are not called upon at the present time to say whether the Wood case should be overruled. As before indicated, the present action is not an action for criminal conversation. The case presented by the petition is one of simple alienation, by alleged acts and arts nоt in themselves criminal. Such an action is essentially different in its nature from an action for criminal conversation, although both contain some elements in common.”
We are squarely confronted with the proposition that we are compelled, in the instant case, to overrule either Hamilton v. McNeill or Wood v. Mathews. If Hamilton v. McNeill is followed, then the procuring of a divorce by the appellant’s wife was a complete bar to appellant’s right to recover against the appellee for alienation of his wife’s аffections. If Wood v. Mathews is to be followed, then the appellant is not barred, by reason of the wife’s procuring a divorce from him, from maintaining a cause of action against the appellee for criminal conversation with his wife.
A majority of the court are of the opinion that the majority opinion in the ease of Hamilton v. McNeill should be adhered to, and that the obtaining of a divorce by the appellаnt’s wife is a complete bar to his right to maintain an' action for the alienation of the affections of his wife, under the provisions of Section 3181 of the Code. The argument pro and con is so fully set fоrth in the majority opinion and in the dissenting opinion in said case that it is deemed unnecessary to further discuss the
We now hold that the obtaining of a divorce by the appellant’s wife from the appellant is a complete bar to the appellant’s right to maintain a cause of action against the appellee for the alienation of his wife’s affections, and it therefore follows that the demurrer of the appellant to the answer of the appell.ee, pleading the obtaining of such divorce as a bar to the appellant’s right of action on the count charging alienation оf affections, was properly overruled.
II. The majority of the. court are of the opinion that Wood v. Mathetus should be overruled, and that the obtaining of a divorcе is a bar to the right of a husband to maintain an action for criminal conversation. It therefore follows that the demurrer of the appellant to the answer of the appellee, pleading the obtaining of a divorce by appellant’s wife as a bar to the appellant’s right to maintain an action for criminal conversation, was properly overruled. The court now holds that thе appellant cannot maintain an action against the appellee for either аlienation of his wife’s affections or for criminal conversation, and the fact that appеllant’s wife obtained a divorce from him subsequent to the acts complained of is a complеte bar to the right of the appellant to maintain either of said causes of action.
The writеr of this opinion dissents from the conclusion of the majority, as expressed herein. I think that Hamilton v. McNeill is wrong, and should be overruled, and that the dissenting opinion of Mr. Justice Deemer in that case is correct. I also think thаt Wood v. Mathews should be followed, instead of being overruled. Mr. Justice Stevens joins in this dissent, both as to the overruling of Hamilton v. McNeill and the following of Wood v. Mathews.
The majority holding to the contrary, it necessarily follows that the judgment of the district court must be affirmed.— Affirmed.