I cannot concur.
In July, 1921, plaintiff filed a bill for separate maintenance. September 8th of that year defendant made answer and, in the nature of a cross-bill, prayed for a divorce. The case was heard, the court found that defendant had no grounds for a divorce, dismissed his cross-bill and granted plaintiff separate maintenance.
That decree, with reference to payments, was amended in June, 1929, and the court at that time referred to its first finding that, under the original proofs, there was no ground upon which the defendant *Page 282 was entitled to any relief, and that he was clearly to blame in the matter and was guilty of extreme cruelty in his actions toward the plaintiff and the plaintiff herself was free from any blame in the matter, and left the decree for separate maintenance in force.
In November, 1934, defendant moved for modification of the original decree and asked that an absolute divorce be decreed to plaintiff. Plaintiff answered that petition.
The court modified the original decree in February, 1935, and granted plaintiff, against her will and at the desire of her adjudged guilty husband, an absolute divorce.
It seems to me that such decree will afford a precedent for the benefit of guilty husbands and nullify the separate maintenance provision enacted for the relief of innocent and injured wives.
I cannot lend countenance to defendant's success and the decree of divorce is reversed, with costs.
NORTH, C.J., and FEAD, BUTZEL, BUSHNELL, and TOY, JJ., concurred with WIEST, J. POTTER, J., did not sit. *Page 283