(dissenting).
I am in full agreement with and concur in the above dissenting opinion of Chief Justice Adair.
In her complaint the plaintiff has alleged facts constituting a cause of action for divorce and in his cross complaint the defendant has also alleged facts sufficient to state a cause of action for divorce. Whether either party is to be granted such relief depends upon the sufficiency of the proof offered in support of the allegations pleaded.
There was no desertion or failure to support charged to the husband in this case.
Where substantial credible proof has been supplied to esstablish all the essential allegations pleaded, it then is within the sound discretion of the trial judge as to whether a decree of divorce or one of separate maintenance shall be granted. Lingner v. Lingner, 165 Tenn. 525, 56 S.W. (2d) 749; Rohloff v. Rohloff, 224 Wis. 153, 11 N.W. (2d) 507, 509; Stefan v. Stefan, 152 Neb. 23, 39 N.W. (2d) 918, 920.
Where, as here, there appears no possibility of any reconciliation divorce should be granted. Coleman v. Coleman, Ky. 1954; 269 S.W. (2d) 730, at page 737; Lingner v. Lingner, supra; Clyburn v. Clyburn, 175 Ark. 330, 299 S.W. 38; Hudson v. Hudson, 151 Neb. 210, 36 N.W. (2d) 851. Experience has taught the courts that in such cases it is usually preferable to grant an absolute divorce. Phillips v. Phillips, 135 Neb. 313, 281 N.W. 22.
We have before us a proceeding of an equitable nature over which this court has jurisdiction on appeal. R.C.M. 1947, section 93-216.
A court of equity having secured jurisdiction will retain it for the purpose of awarding complete relief. Continental Supply Co. v. White, 92 Mont. 254, 269, 12 Pac. (2d) 569; Merhcants Fire Assur. Corp. v. Watson, 104 Mont. 1, 12, 64 Pac. (2d) 617; Reickhoff v. Consolidated Gas Co., 123 Mont. 555, *442568, 217 Pac. (2d) 1076; Epleveit v. Solberg, 119 Mont. 45, 60, 169 Pac. (2d) 722.
As was said in Lowry v. Carrier, 55 Mont. 392, 397, 177 Pac. 756, 759, “The evidence in its entirety is before us, and we are authorized by section 6253 [now R.C.M. 1947, section 93-216], Revised Codes, to dispose of the cause on its merits.” Emphasis supplied. Also see Bosanatz v. Ostronich, 57 Mont. 197, 204, 187 Pac. 1009.
In this case the evidence was substantial and sufficient to warrant the trial court’s judgment dissolving the marriage and to limit the contribution for maintenance to the period of time and amount adjudged and, with the modifications suggested in the Chief Justice’s dissent, such judgment should be affirmed.