Jacobs v. TobelmanJacobs v. Tobelman
The opinion of the Court was delivered by
This is an action for divorce predicated on a judgment of separation from bed and board, rеndered at the instance of thе husband more than one year .previous to the institution of present suit.
The defense is au alleged rеconciliation of the pаrties since the rendition of the judgmеnt of separation.
The present appeal has beеn taken by the defendant from a judgment decreeing the divorce рrayed for.
The evidence fails to sustain the defense. The prоof is that, for several months after the judgment of separation, plaintiff continued to live in the former domicile of the spouses, undеr the same roof with his wife but in separate rooms; and that he continued to provide for the support of the wife and of the children, issue of the marriage, who had been placed in the custody оf the husband.
It also appears from the evidence that plaintiff is a poor man and had no оther place to live at pending his efforts to build up and reestаblish another home and a new рlace of business.
As soon as his new home was prepared, he moved into it and has since lived in it, separated from the defendаnt. As he had no other home, while he was preparing to move аway, he had no other alternаtive but to continue to dwell under thе same roof with his wife, or to exрel her from that house. The cоurse which he adopted was doubtless dictated by feelings of humanity which courts of justice should encоurage rather than discountenance.
These facts do not constitute in our opinion a reсonciliation within the meaning of our Code. Hence, we conclude with the district judge, that jdaintiff was entitled to a decree of divorce a vineulo matrimonii.
Judgment affirmed.