41 So. 384 | Miss. | 1906
delivered the opinion of the court.
The decree final on this bill for divorce from the bonds of matrimony is in the following words:
“This cause coming on to be heard on bill, personal service, and oral proof had at the hearing, which has been reduced to writing and filed as a part of the record in this cause, the court, having considered the same, doth find that about three years ago defendant deserted complainant without cause; that she lived away from him about a year, during which time there was some hotly contested litigation between complainant and defendant, both over their children and their property; that defendant, on the advice of her counsel, in order to protect her property rights, returned to their home, which was involved in the litigation; that she remained at home about a year and a half, and cared for their children, who had been awarded to her husband; that complainant paid her for this service; that during the time they lived in the same house they ate separately and occupied separate portions of the house, and during all the time they lived in the same house defendant persistently and obstinately refused to cohabit with complainant as his wife, and that defendant had not cohabited with complainant since she left him three years ago; and that this refusal to cohabit with complainant has been continued, willful and obstinate for more than two years next before the filing of the bill of complainant in this cause. But the court further finds that, as a matter of fact, complainant and defendant did live in the same house, although occupying towards each other the attitude of strangers. This fact the court holds will prevent the complainant from having a decree, for the reason that the court holds, as an abstract rule of law, that a decree of divorce on account of desertion can never be predicated of a state*680 of facts showing that complainant and defendant have occupied the same house as their place of abode within two years. The court further holds that the testimony as to the statements of defendant as to her relation with complainant are incompetent. It is therefore ordered that complainant’s bill be dismissed without prejudice. Ordered, adjudged, and decreed this 17th day of April, 1906.”
The court below was correct in its finding of facts, but we cannot agree with the learned chancellor in the opinion that there can be no desertion where the parties live under the same roof for part of the two years. Abandonment — desertion—-may be as complete under the same shelter as if oceans rolled between. 1 Bishop oh Marriage'and Divorce, secs. 1672, 1676, cited by counsel. The custody of the children having been awarded by the court to the husband, the appellant, in previous proceedings, we need not consider that. The evidence is competent. 3 Wig-more on Evidence, pp. 2729, 2773.
Reversed, and decree here of divorce from the bonds of matrimony.