delivered the opinion op the court.
Thе appellee sought and obtained a divorce from his •wife, the appellant, on the sole ground of his having lived apart from her without cohabitation for five consecutive years next before the institution of his action. Thе fact of separation was not denied, but the wife sought alimony upon the ground that the appellee, without "cause, had abandoned her when she was without fault; that she had sheltered him in a home provided by her for the nine years of their married life, and been
The appellee admits that he abandoned his wife, but denies that he was in fault, and sets up a series of petty grievances against her, evidently having little, if any, excuse for his conduct. Hе was about thirty-eight years of age and she forty-eight when they married in 1875. She was a widow with two daughters. They kept a boarding hоuse, and the wife was industrious and economical. The husband was addicted to frequent sprees, but was a proficient salesman and clerk, and contributed to a considerable extent to the support of the family. In his depositiоn he says that while he was married he bought a town lot for $150, and a small tract of land for which he paid $200; that just before thе separation he had' bought a piece of land and owed a sale bond amounting to $301, and was without money to pay it; that he told his wife and her daughter and son-in-law that if they would pay to him some $245 that the son-in-law owed for board, hе would stay at home and assist his wife in keeping the boarding house, otherwise he would be forced to leave in ordеr to make money enough to pay
The chancellor seems to have been of the opinion that because the divoree was not obtained by the wife in a proceeding by her for that purpose, she is not еntitled to ¡alimony, and such would seem to be the effect of a .literal construction of the statute. It reads, “ and if thе wife have not sufficient estate of her own, she may, ■on a divorce obtained by her, have such allowance out of that of her husband as shall be deemed equitable,” etc.
We do not think, however, that this statute deprives the wife of alimony, if otherwise entitled to it, simply because she may not have instituted the suit for divoree. It was intended to apply in all cases where the separation occurs without her fault, and embraces cases where ■she is entitled to obtain a divorce, though the husband is seeking it. Such was the effect of the decision of this court in Davis v. Davis,
It is insisted, however, that because the wife’s answer was not styled a “ counter-claim,” she is not entitled to a judgment for alimony. If this rеquirement of the Code be applicable to cases of this kind, yet the appellee by replying to and joining issue on the matter set up in the alleged counter-claim, waived his right to make this objection. (Cason v. Cason,
The only allowance to the wifе was $75 pending the suits. The extent of her estate seems to be about $700. The husband seems to have gotten several hundred dollars of her separate property, and is- worth some
The judgment below dismissing her claim is reversed, and a judgment in her behalf is directed to be entered for this sum.