96 P. 1099 | Or. | 1908
Opinion by
Two periods of desertion cannot be added together for the purpose of making up the time required by the statute. Burk v. Burk, 21 W. Va. 445. And if what the law defines a “cohabitation,” however brief, transpires, the earlier and latter desertions cannot be yoked and counted in years together. 1 Bishop, Marriage, Divorce, and Seperation, § 1773. No facts are stated constituting the act or showing the intent to desert in January, 1900; but the legal conclusion alone is stated. The evidence offered by plaintiff discloses that some time during the year 1900, and while he was away from home at work, defendant disposed of the household goods, vacated the home and left for this State; that plaintiff, as soon as he was informed of that circumstance, quit his work, followed her to Oregon, brought her back, and reinstated her in their home at Rogers, Arkansas. It is not averred, nor shown, that this act of desertion continued any definite period of time; but it is admitted that it was followed by cohabitation of the parties at the instance and request of the complainant, and it is alleged, in substance, that from time to time defendant received and accepted the overtures made to defendant by plaintiff to reconcile their differences until the month of August, 1902, when plaintiff, being sick with fever, returned home from the territory of Oklahoma, where he had been working; that defendant then refused to receive plaintiff at their home and ordered him to leave, which he accordingly did, and' went to a hospital for the nursing and care necessary to restore him to health. But plaintiff’s own evidence,
The facts as related by plaintiff, however, do not constitute desertion on the part of defendant; but, at most, thk evidence a seperation agreeable to both. Howeys^i January and February foiling, plaintiff address'''" tionate letters to his wife, promising to go b^ her, and also to look for and procure a V place, where he was working, so they ir/| In fact, he proposes to seek new and cj^ in order to be at home. This is a/ with the attitude of a husband//, £ driven from his home and desear ent state of affairs is showi? dates of January 29th, EF May 11th, 1905. One in evidence, and we from his replies whs undoubtedly had a new home-for plaintiff; m
It necessarily follows that the decree must be reversed, and one entered here dismissing the complaint and cross-complaint. Reversed.
This case has never been published in the Oregon Reports. Reporter-
According to date of decision, this case should have been published in 50 Or. Reporter.