dissenting:
I dissent. This is I believe a case covered by our statutes on recrimination and until further direction of the Legislature I believe no divorce should be granted in view of our statutes.
Section 21-118, R.C.M.1947, reads:
“Divorces denied, on showing what. Divorces must be denied upon showing:
“1. Connivance; 2. Collusion; 3. Condonation; 4. Recrimination.”
Section 21-128, R.C.M.1947, reads:
“Recrimination, what constitutes. Recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff’s cause of divorce.”
My understanding of the law of this state is that up to this case, a party guilty of recrimination (equal fault) is not en*12titled to a divorce. 27A C.J.S. Divorce § 67; 17 Am.Jur. Divorce and Separation, § 263; Kuzer, Law of Marriage and Divorce (3rd Ed.) § 533; 1 Nelson, Divorce and Annulment, (2d Ed.) § 10.01; Bordeaux v. Bordeaux, 30 Mont. 36, 43, 75 P. 524.
The above authorities note certain states where recrimination is no longer an absolute bar to a divorce inasmuch as the courts have discretionary power to either make it or not, according to the circumstances of the case, but until this case Montana has not given that discretionary power to the trial courts.
Concerning the granting of a divorce to both parties, each of whom is guilty of an offense which is a cause for a divorce; the majority has cited the following cases: Flagg v. Flagg, 192 Wash. 679, 74 P. 2d 189; Simmons v. Simmons, 122 Fla. 325, 165 So. 45; Burch v. Burch, (3rd Cir.) 195 F.2d 799. I can find nothing in these cases for valid authority to support the instant case. Washington has authority for a double divorce by statute, R.C.W. § 26.08.150. In the Simmons case (Florida) while the divorce was granted to both parties it was not a point raised in the appeal. The Burch ease relies on both the Florida and Washington cases and is therefore in my opinion not persuasive.