(dissenting) — I am unable to concur in the foregoing opinion. The majority, following the case of Schirmer v. Schirmer, 84 Wash. 1, 145 Pac. 981, hold that a trial court is justified in granting a decree of divorce, although it finds that each of the parties has been guilty towards the other of wrongs for which divorces are permitted by the statutes.
In so far as they announce this principle, the cases stand as anomalies in divorce procedure. No court, prior to the *103decision cited, had ever announced such a doctrine, and this court had itself distinctly repudiated it. See, McDougall v. McDougall, 5 Wash. 802, 32 Pac. 749; Colvin v. Colvin, 15 Wash. 490, 46 Pac. 1029; Ellis v. Ellis, 77 Wash. 247, 137 Pac. 453. For the general rule, see 2 Bishop on Marriage, Divorce and Separation, § 409, where the following is found:
“The refusing of redress to a plaintiff who is himself at fault in that whereof he complains — is a familiar and fundamental principle in our entire legal system. Marriage creates reciprocal duties. And for certain breaches of them, commonly specified by statutes, the injured party may have a divorce absolute or partial. But if one has committed a breach of this sort, he cannot conformably with the principles of our jurisprudence have a divorce for the other’s violation. To bring a case within this rule, it is not sufficient that the plaintiff simply lacks the perfections which we attribute to angels, his wrong must be such that but for the other’s wrong he would be liable to be himself either partially or fully divorced.”
But the present opinion has faults not contained in the earlier one. Notwithstanding the case is here on the findings without the evidence, and notwithstanding the trial court found that “each of the parties had been guilty of cruelty towards the other, rendering their married life burdensome and that the parties are entitled to a decree of absolute divorce from each other as on the application of both,” it is held that it is not to be supposed that the parties were equally at fault. This conclusion is based on certain admissions in the answer; it being concluded therefrom that “whatever cruelty the wife may have been guilty was traceable to and induced by the husband’s continued neglect, cruelty and parsimony.” But this conclusion overlooks the legal principle that divorces are never granted on the pleadings, but must be granted “for cause distinctly stated in the complaint, and proved, and found by the court, . . Rem. & Bal. Code, § 996. Were admissions in the pleadings to be considered, divorces could be granted on default for *104want of an answer, as in civil actions generally. But the statute expressly forbids this. It is provided that, when the action remains undefended, the prosecuting attorney must appear and resist the complaint (Id., § 995) ; and so careful is the law that imposition may not be practiced it is provided that no prosecuting attorney shall be allowed to defend if the attorney for the applicant is a partner of or offices with the prosecuting attorney, but that in such cases the court shall appoint other counsel for such purpose.
Again, it is assumed that it is only where the parties are at fault in equal degree that a divorce will be denied. This is not the rule. While it is true that, if the fault of one is only such as to bring his conduct within the statute, a divorce will not be denied the other, even though that other may have been guilty of some degree of misconduct. But where both parties are guilty of such conduct as to warrant a divorce to the other, were that other innocent, the courts do not measure the delinquencies to ascertain which is the most at fault. They are then in pari delicto, and divorce is denied to either.
The judgment should be reversed.