On Rehearing.
Fisk, J.(on denying rehearing). The petition for rehearing is denied, but in denying same we deem it proper to give a brief state-' ment of our reasons for so doing.
The first ground upon which a reheairng is prayed for is that the time during which plaintiff was engaged in prosecuting her action cannot be considered in computing the statutory period of desertion, entitling defendant to a divorce. The history of this litigation, as disclosed by the record, furnishes a conclusive answer to such contention. Conceding the correctness, as a general proposition, of the rule now urged, but without deciding the same, it is, to our minds, entirely clear that plaintiff should not be permitted at this late date to invoke such rule. Such point is raised for the first time in her petition for a rehearing. It is a new point in the case, and has no place in her petition. Furthermore, it has been waived. At the time the case was called for trial in the district court plaintiff’s counsel asked and obtained leave to serve and file an amended complaint. Thereupon defendant was permitted, by consent, to serve and file an amended answer, wherein the second counterclaim, alleging desertion on plaintiff’s part, was incorporated as a supplemental cause or ground for divorce. Plaintiff’s counsel characterized such pleading as a supplemental, rather than an amended answer, stating: “That is a supplemental answer, based upon a * * * cause of action for divorce arising since the filing of the other answer. We have no objection to the amended ■answer, if your honof please, but we desire the record to show that it was served as of to-day before the commencement of the case.” Subsequently a reply was served, putting in issue the allegations of such supplemental answer and crossbill. Throughout the entire litigation, both in the district and 'Supreme courts, not even an intimation was made by plaintiff’s counsel that they relied, or intended to rely, upon any such point in defense of such supplemental cause *394of action. Defendant has at all times asserted his right to recover on such crossbill, and plaintiff makes no reply to such contention, but the attitude of her counsel throughout the litigation amounts, at least, to a tacit admission by them of defendant’s right to recover thereunder in the event the relief prayed for by plaintiff should be denied. In the light of the above facts plaintiff’s counsel will not be heard, at this late date, to change their attitude upon this feature of the case.
Counsel assert, with apparent confidence in the correctness of their position, that the majority opinion, in effect, overrules the cases of Jasper v. Hazen, 4 N. D. 1, 58 N. W. 454, 23 L. R. A. 58, Dowagiac v. Hellekson, 13 N. D. 257-265, 100 N. W. 717, and Ruettell v. Ins. Co., 16 N. D. 546, 113 N. W. 1029, upon the question of the weight to be given the findings of the trial court. Counsel are clearly mistaken. Jasper v. Hazen arose long prior to the enactment of our statute providing for trials do novo in this court, and the other cases relied on were law cases, and were not appealed under the so-called Newman statute. Hence such cases are in no respect in point here.
With reference to that portion of the decree relating to the custodjr of the children nothing new is presented in the petition requiring further notice. We have, however, carefully reconsidered this feature of the case, and in the light of all the facts we see no reason at this time for changing our former conclusions. This court will retain jurisdiction of the case in the future to the extent of entertaining applications for a modification of the judgment, and will, on application and sufficient showing, direct the district court to make any such changes or modifications in the judgment regarding the custody, support, and education of the children as in the judgment of this court may be deemed proper and for the best interests of such minor children.
But one other matter referred to in the petition will be noticed. At the end of the rehearing petition, and as an alleged newly discovered ground for a rehearing, counsel for plaintiff, in' their great zeal for their client’s cause, make the following somewhat remarkable and unwarranted statements: They charge, in effect, that one of the members of this court who participated in the decision of the case was actuated by implied bias in agreeing to the opinion and decision. Our attention is directed to exhibit 103, which counsel characterize as the “free list of the defendant,” or, in other words, *395a list of those whom defendant has treated gratuitously. Such exhibit is headed, “This list contains accounts uncollectible, accounts for which no charge was intended to be made, and accounts which have been settled by service or merchandise.” Then follows the names of nearly one thousand persons, and opposite the names of most of them appear figures indicating charges, opposite the others no such figures appear. The name of 'one judge of this court is included in such list, and opposite his name appears the following: “1 — 1—7............12.” The utmost that can legitimately be argued from this is that, according to defendant’s books of account, defendant made a charge of $12 on January 1, 1907, against one who two years later became a member of this court, and from this it is seriously argued that, not only did the relation of physician and patient exist between the doctor and such judge, but that there existed between them such an intimate friendship that the defendant performed, and such judge accepted, such professional service as a gratuity. Such argument is unfair and wholly unwarranted. The exact reverse would appear from the exhibit to be true. There was a charge made which conclusively refutes the inference contended for by counsel. Among other things, counsel say: “If we had had the slightest knowledge or intimation that the defendant in this lawsuit was the physician that had been chosen by any member of this court, and who had treated and performed valuable professional services for such justice, and for which no charge had been rendered or fee paid by such justice, we should have certainly protested to the court against such justice sitting as a member of the court to hear this case.” Again they state: “We do not believe under the facts related, that Judge-, or any other man similarly situated, could possibly sit in this lawsuit without prejudice or bias as between the parties, considering the detailed charges made against the defendant. * * * We insist that we are still entitled to the right which it is plain we have not yet had — that of submitting the issues of this lawsuit to a court composed entirely of judges having no acquaintance with, or reason to be prejudiced in favor of, this defendant. * * * Until this is done, in the opinion of our client and of ourselves, Mrs. Rindlaub will not have had that to which she was honestly entitled in this court, a fair and impartial hearing before fair and impartial judges.” The foregoing statements are very broad, and wholly unjustified. While disclaiming any intentional improprieties on the part of such judge, counsel *396boldly assert that their client has not been accorded a trial before a court composed of fair and unbiased judges, all because of the trivial claim aforesaid. Such facts would not even constitute statutory grounds for a challenge to a juror in a civil action. The exhibit, as printed in plaintiff’s abstract, bears unmistakable evidence that the same was carefully scanned by some one connected with plaintiff’s side of the case, as each of the names of the many witnesses for defendant, whose names appear therein, are printed in italics, yet it is asserted that the fact that such judge’s name is contained thereon was first discovered at the time of printing this petition for rehearing. We do not mean to question counsel’s word in the matter, but it is almost unbelievable, although possible, that such name was overlooked by the person who examined such exhibit for the purpose of underscoring for the printer the names of such witnesses. However this may be, it is preposterous to assert that such judge was in the least prejudiced or biased in defendant’s favor on account of the fact disclosed by such exhibit. This contention is as equally devoid of merit as the assertion in the petition to the effect that paintiff had a right to submit the issues “to a court composed entirey of judges having no acquaintance with” defendant.
(125 N. W. 479.)The petition is denied.
Note — Wife’s false charges of husband’s infidelity, excited by his conduct, although producing suffering, will not warrant a divorce. McAllister v. McAllister, 9 N. D. 324, 75 N. W. 256. Violent and abusive language by husband to wife producing anger on .her part, does not necessarily inflict grievous mental suffering. Mahnken v. Mahnken, 9 N. D. 188, 82 N. W. 870. Infliction of grievous mental suffering, producing no bodily injury, may warrant a divorce. Id. As to divorce for extreme cruelty. DeRoche v. DeRoche, 12 N. D. 17, 94 N. W. 767. Habitual utterance of profane language and obscene stories by wife to husband and others in his presence, where by reason of husband’s mental and other characteristics he is caused humiliation and suffering, is cruelty. Mosher v. Mosher, 16 N. D. 269, 113 N. W. 99. So continuous fault finding, threats and other acts intended to aggravate and annoy. Id.