In an action by a husband for divorce on the ground of desertion, the petition, which was returnable to the March term, 1924, alleged that the desertion occurred on or about November 1, 1920. The answer denied the allegations as to desertion, but alleged that the parties were living in a bona fide state of separation by reason of the abandonment of defendant by plaintiff. A second verdict was returned for the plaintiff, and a new trial was granted. At a subsequent trial, on practically the same evidence another final verdict was rendered for the plaintiff. The defendant’s motion for a new trial, based solely on the usual general grounds, was overruled, and the movant excepted. Held:
1. It is provided in the Civil Code (1910), § 2948: “If the adultery, *838desertion, cruel treatment, or intoxication complained of shall have been occasioned by the collusion of the parties, and with the intention of causing a divorce, or if the party complaining was consenting thereto, or if both parties have been guilty of like conduct, or if there has been a voluntary condonation and cohabitation subsequently to the acts complained of, and with notice thereof, then no divorce shall bo granted; and in all cases the party sued may plead in defense the conduct of the party suing, and the jury may, on examination of the whole case, refuse a divorce.”
No. 6062. February 17, 1928. 8. P. Cam, for plaintiff in error. J\ Q. Smith, contra.-2. Under the admissions in the pleadings and conflicting evidence the jury was authorized to find a verdict for the plaintiff. The case differs on its facts from the cases of Word v. Word, 29 Ga. 281; McCord v. McCord, 140 Ga. 170 (78 S. E. 833); Phinizy v. Phinizy, 154 Ga. 199 (114 S. E. 185). Judgment affirmed.
All the Justices concur.