I concur in the conclusion that there was not evidence sufficient to support the finding made by the trial judge that after April 10, 1922, the wife deserted the husband, within the meaning of the law, for a period of more than six months; and in the reasoning leading to that conclusion. I concur also in the conclusion that under the circumstances of this case a new trial cannot be granted and that a decree must be entered in favor of the libelee dismissing the libel; but I base my conclusion on this second point not upon the reason given in the leading opinion but upon another reason. The trial judge in his opinion said inter alia: "Wide latitude was allowed by the court in the taking of testimony. Evidence was admitted *Page 808 beginning with the date of marriage. Many letters were received in evidence on behalf of the libelee showing the condition and circumstances of the home life, the attitude of each to the other, and various and sundry incidents of the marriage relation. It appears from the evidence that the libelant was, on more than one occasion, desirous of securing a divorce and so stated in letters to the libelee. He also entered into an agreement, duly witnessed, that desiring to live a single life he was willing to pay to the libelee a certain sum monthly.
"Many of these letters were written four or five years prior to 1922. The letters and incidents of the period preceding 1922 show that the marriage relation was somewhat strained. Whatever may have been the causes for living separate and apart, and it is evident from the record that neither was desirous of resuming marital relations, yet it cannot be held that this situation is controlling when considered in the light of the incidents beginning with April, 1922." In other words, the trial judge, who saw and heard the witnesses and had the power to pass upon issues of fact, definitely found that the separations of the parties prior to April 10, 1922, were by mutual consent. When a separation is by mutual consent it does not constitute legal desertion on the part of either of the parties. There was ample evidence to support this finding. Several letters passing from the husband to the wife in 1921 and the written agreement, signed by the husband in 1920, which, as stated by the trial judge, witnessed that the husband desired "to live a single life," support the finding.
The situation, then, is that the finding made by the judge of a desertion by the wife subsequent to April 10, 1922, is wholly unsupported by the evidence and that the finding which he made of an absence of desertion prior to April, 1922, is amply supported by the evidence. The *Page 809 case does not stand as though the husband had not had an opportunity to present evidence on the question of desertion prior to April, 1922. Both parties have had their day in court. The judge has made his findings. One of those findings is set aside for lack of evidence; the other is held good. The result, to my mind, must necessarily be that a decree should be entered dismissing the libel. No request is made that the husband be given a second opportunity to present evidence of desertion of the wife after April 10, 1922, and it could not be properly granted if it were made. The same is true of the request to present further evidence concerning the alleged desertion prior to April, 1922. Ordinarily, parties are not entitled to two attempts to prove their case. If they have had one opportunity and have presented their evidence and the evidence has been properly weighed and passed upon by the trial judge, that is all that they are entitled to. If no finding had been made by the court below on the issue that is earlier in point of time, the case might conceivably be different.
Upon this ground, I think that a decree should be entered in this court dismissing the libel.