This is a divorce case in which the circuit judge after considering the testimony of the respective parties entered a decree dismissing the bill of complaint on the ground "that there has been collusion in respect to the filing of the bill of complaint." The above decree was filed July 31, 1939. On August 1st, counsel who had *Page 660 represented plaintiff at the hearing consented to a substitution of attorneys, and substitution was filed August 16th. On that date plaintiff's present counsel filed a petition for rehearing. The circuit judge on January 15, 1940, entered an order denying rehearing, as follows:
"In this cause, plaintiff's petition for rehearing having come on to be heard and it appearing that since the filing of said petition, the plaintiff has failed to comply with the directions of the court in said matter and the court being fully advised in the premises,
"It is ordered that the plaintiff's petition for rehearing be and the same is hereby denied."
On February 3, 1940, plaintiff filed a claim of appeal. Still later (April 25, 1940), the circuit judge made and filed "findings of the court." We quote the findings in full:
"In this case I find that the plaintiff husband left Germany in the summer of 1925 (arriving in New York in or about July 4, 1925), and the defendant wife remained there. I also find and conclude as a matter of law, that plaintiff made an agreement with the defendant prior to leaving her, to the effect that they should separate and that he at that time fully intended to fulfill this agreement as he testified at the trial that he sent his wife the first payment shortly after he left her since it was understood between them that he was to pay her 2,500 or 2,700 marks, equalling about $1,000, which is shown by the testimony of the plaintiff, and it is apparent that there was collusion between them. The plaintiff was given an opportunity to produce a witness for the purpose of giving further testimony to prove that there was no collusion in connection with his application for a divorce. This he failed to do and also failed to comply with the further directions of the court in regard to the matter and therefore the dismissal of plaintiff's bill of complaint for an *Page 661 absolute divorce and the decree dismissing same is based upon the findings in this case. The plaintiff's petition for a rehearing was likewise dismissed because of his failure to comply with the directions of the court as aforesaid."
Appellant contends the circuit judge was in error both in decreeing dismissal of the bill of complaint and in subsequently denying the application for rehearing. Plaintiff's testimony was taken in open court. Defendant had appeared by counsel in the case who filed an answer for her in which she denied all the allegations of plaintiff's bill of complaint wherein defendant was charged with extreme and repeated cruelty; and defendant's deposition, taken on interrogatories in Germany, was received in evidence in support of her answer. At the hearing plaintiff was the only witness who gave testimony in his behalf. While plaintiff was being cross-examined, the court intervened and the following record was made:
"The Court: You say you had an agreement?
"A. Yes.
"The Court: What was that agreement?
"A. We separate, see how we get along for a year or a year or two. If we don't get along, I have to pay her 2,500 marks. If we get along she would come over here [to the United States] and join me. * * *
"The Court: Yes. What were you to do?
"A. And she used that money, for to go with her sister in that business.
"The Court: What about yourself?
"A. And I stay here and take a divorce.
"The Court: That was your understanding and agreement that you had between yourselves?
"A. Yes.
"The Court: That you should get a divorce here?
*Page 662"A. Yes."
The above was followed by a colloquy between the court and counsel, and the attorney who then represented plaintiff urged that his client had misunderstood the court and that the agreement was only one as to separation, not as to obtaining a divorce. Upon further examination plaintiff gave testimony to that effect. At this juncture the hearing before the court terminated, although it appears that there was a further consultation between the attorneys for the respective parties. The hearing terminated July 21, 1939, and, as above noted, the decree dismissing the bill of complaint was filed July 31, 1939.
Plaintiff did not make any further showing before the court touching the matter of collusion. It further appears from a letter embodied in the report of the friend of the court "That upon the hearing of the cause the plaintiff was directed by the court to pay to Mr. Hailer, the defendant's attorney, the sum of $150 as and for attorney fees." A formal order does not seem to have been entered. The above-quoted findings of the circuit judge disclose that at the time plaintiff's application for rehearing was denied he had not furnished any further testimony as to collusion nor had he complied with the order for the payment of attorney fees. It was for these reasons that the trial judge denied plaintiff's application for rehearing. On this record we would not be justified in reversing the decree dismissing the bill of complaint or in setting aside the order denying plaintiff's application for rehearing. The decree entered should be affirmed; but no costs should be awarded since appellee has not filed a brief.
*Page 663WIEST, J., concurred with NORTH, J.