ON APPLICATION FOR REHEARING
Decided May 2, 1835
By THE COURTPlaintiff in error has filed a motion asking for a reconsideration of the decision formerly rendered by the court in this case.
We have carefully considered this application but could assign no good reason for granting the same.
Counsel for plaintiff in error, in their memorandum, suggest that the court has failed to pass upon the effect which a collusive agreement entered into between these parties may have and also failed to pass upon the effect of the defendant in error failing to prosecute her action to a conclusion.
We thought we had passed upon all of *333the grounds of error in our former decision when we stated that we had examined the entire record and found nothing therein which would warrant us jm holding the trial court abused its discretion or committed any prejudicial error in rendering the judgment which it did.
■ In our former opinion we referred to the fact that reference was made to a separation agreement which had been entered into between the parties and also stated that this separation agreement did not appear either in the bill of exceptions or in the pleadings.
We further suggested that doubtless there were good reasons why the defendant (being the plaintiff in error herein) did not desire this separation agreement to be brought to the attention of the court. We are still of the same opinion, but as counsel for plaintiff in error in their memorandum refer to the collusive agreement entered into between the parties we are at liberty to say what we did not feel free to say in our former opinion, viz.: that the separation agreement referred to was a collusive agreement. If it was a collusive agreement (which the trial court could not see) then we think it sufficient to say that where a collusive or fraudulent agreement is entered into, the courts universally allow the parties to remain where they find them.
We would also be at a loss to know' upon what theory we could find prejudicial error in the proceedings because of the failure of the defendant in error (being plaintiff in the lower court) to prosecute her divorce action to a conclusion. As stated in the former opinion the record shows that the plaintiff in error (defendant below) filed a cross-petition in which he sought a divorce. If the averments in his cross-petition are correct there would seem to be no good reason why he should not prosecute his cross-petition if a divorce is desired. We can only repeat what we stated in our former opinion, that from a consideration of the entire record we would not feel justified in holding that the trial court committed prejudicial error in rendering the judgment which it did.
The application for rehearing will therefore be denied.
KUNKLE, PJ, BARNES and HORNBECK, JJ, concur.