I respectfully dissent. The rule that "the time of the pendency of a prior divorce suit between the parties cannot be counted as a part of a period of desertion", although occasionally referred to as a "general rule", is not without its exceptions and limitations. One such exception has been recognized in the majority opinion. It is therein conceded that in order to avail the wife as a defense in the proceeding instituted by her husband, her own prior libel against him must have been brought in good faith. There is a reason why the application of the rule above quoted should be so limited; and the reason, as I interpret the authorities cited herein and in the majority opinion, is that the prior proceeding, in order to justify a separation, must have been its cause. Some of the authorities cited, but not followed, by the majority, and other authorities, still further restrict the application of the rule, the courts and text writers in such instances apparently applying as a test the reason above set forth. For instance, the majority's quotation from 19 C.J. 80, Sec. 179, begins with the recital that "the rule has not been applied to a willful desertion or a desertion without cause." In many instances courts have refused to apply the rule above named where the reason for its application does not exist. Thus inHitchcock v. Hitchcock, 15 App. *Page 603 D.C. 81, the institution of a suit by the husband, after the wife's wilful desertion, to have their marriage declared void, was held not sufficient to convert the desertion into justifiable separation from the time of the pendency of the suit. In Wagner v. Wagner, 39 Minn. 394, 40 N.W. 360, a period of desertion already begun was held not to be interrupted by a subsequent unsuccessful proceeding against the wife on the ground of adultery. Said the court in the case last cited, "In view of the evidence and the finding of the court, the reasons for her desertion and for her continued absence are to be deemed to have been foreign to those assigned by her as the causes of such actions." In the late case of Douglas v. Douglas, 4 S.W.2d 358, the husband's suit for divorce on the ground of desertion was dismissed on the ground that the statutory period had not yet elapsed and a later suit was begun by the husband within two years (the statutory period) of the earlier decree. Held that the later proceeding was not brought prematurely; and further held that the period of desertion by the wife was not suspended by the pendency of another divorce suit brought by the wife against the husband on the grounds of cruelty and abandonment, which last named suit had been heard on its merits and adjudged against the wife. In Easter v. Easter, 75 N.H. 270,73 A. 30, 139 A.S.R. 688, the court said: "The pendency of a libel for divorce is an evidentiary fact bearing upon the question whether the absence complained of is such an abandonment as the statute makes a cause for divorce, but it is not necessarily decisive of the question. One honestly prosecuting a supposedly sound suit for divorce cannot be found guilty of desertion while so engaged; and one charged with offenses which imply the consent of the other to a separation cannot be charged with desertion within the meaning of the statute for refraining from the matrimonial relation *Page 604 both because the absence is justifiable and consented to. One who has caused a separation by a groundless suit cannot charge the other with desertion. But in this case the separation was not caused by the plaintiff's former suit, nor justified by the plaintiff's conduct, but resulted from the defendant's wrongful act prior to the commencement of that suit. The former application for divorce upon the ground of abandonment did not conclusively establish that the libelant consented to the separation, nor did the pendency of the application necessarily destroy the libelee's abandoning intent — the essence of the charge of desertion in the party offending." Quoting from 1 Bishop on Marriage and Divorce (6th Ed.) Sec. 802, p. 614: "It is believed * * * that desertion requires only the concurrence of two elements, namely, a cessation of the cohabitation and an intent to desert; and that when these two combine their effect is not taken away by any mere temporary excuse for an absence. If the excuse were permanent and perpetual, the case would, in reason, be different."
In the case at bar it is neither alleged nor proved that the wife's abandonment of or separation from her husband was due to the institution or pendency of her former suit. The former suit was brought upon the ground of the husband's alleged non-support of his wife. The decree therein was in favor of the husband. While non-support was one of the grounds alleged in libelee's cross-libel in the present case, it was early eliminated both as a defense and as a ground for affirmative relief by counsel's oral stipulation at the beginning of the trial that the question of non-support was res judicata, as above set forth. Evidently at the trial no importance was attached to the pendency of the former suit as a defense — if indeed it was considered a defense — for no evidence was then introduced, so far as the transcript discloses, showing when said suit was *Page 605 begun or when it terminated. No advantage has been taken of this omission and the parties in their briefs and oral arguments have assumed that said two events occurred in 1926, on February 1 and June 24, respectively, approximately as found by the trial judge. But the fact thus informally brought into the record is nowhere claimed to be libelee's excuse for not living with her husband during the period above named and ample reason appears for holding that the pendency of the former suit and the ground upon which it was based were not the libelee's reasons for leaving her husband in the first instance or for remaining away from him thereafter. Even in her brief in this court, before arguing upon a hypothesis which she does not accept, the libelee says: "Libellant-appellant states in his opening brief herein that the only question of law presented is whether the statutory period of desertion had elapsed at the time this suit was filed. We submit that the undisputed facts herein do not even present that question for consideration."
In the circumstances above set forth I cannot concur in the view that the mere pendency of a prior suit as a matter of law delays the beginning of the running of the statutory desertion period until the time of the termination of the former suit. In the instant case the trial judge has found upon sufficient evidence that the libelee deserted the libelant January 8, 1926, and that ever since said last named date she has not lived with him and has refused persistently to live with him and that her said refusal has been wilful, without just cause and against the will and wish of libelant. Upon an examination of the evidence, this court has held that no reason appears for disturbing the findings of the trial judge. The time which elapsed from the 8th day of January, 1926, until the date of the filing of the libel in this case was eleven months and six days. In my opinion, the libelant has shown utter and *Page 606 wilful desertion on the part of his wife during that entire time and for that reason I believe that the decree appealed from, insofar as it dismisses the libel, should be reversed and a decree entered for the libelant.