Dunn v. Dunn

• Decision Date: 13 January 1930
• Docket Number: 28312
• Citation: 125 So. 562,156 Miss. 132
• Court: Mississippi Supreme Court
• Parties: DUNN v. DUNN

125 So. 562

156 Miss. 132

DUNN v. DUNN

No. 28312

Supreme Court of Mississippi

January 13, 1930

Division A

1 DIVORCE. Equal guilt of complainant may be pleaded as defense in bar of right to divorce.

Equal guilt of complainant in divorce action may be pleaded as a defense in bar of right to divorce in accordance with doctrine of recrimination.

2 DIVORCE. Court may, of its own motion, deny relief where guilt of complainant of matrimonial offense appears from his own admissions or proof offered.

Court may, of its own motion, deny relief in divorce action and dismiss suit where guilt of complainant of matrimonial offense appears from his own admissions or proof offered to establish his right to divorce, regardless of whether recriminatory charge was specially pleaded or set up in answer.

3 DIVORCE. Husband's belief as to right to enter marriage after wife's desertion was not available as justification as respected recrimination.

The fact that husband, after desertion by wife, believed that he had a legal right to contract a second marriage, was not available as justification for husband's matrimonial offense as respected recrimination defeating right to divorce, in that it was merely a mistake of law.

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court of Lincoln county HON. V. J. STRICKER, Chancellor.

Suit by C. I. Dunn against Georgia Dunn. Decree of dismissal, and complainant appeals. Affirmed.

Decree affirmed.

Jas. F. Noble, of Brookhaven, for appellant.

Where a petitioner acted purely in ignorance of the law and had no intention to commit adultery, the discretion conferred upon the court should be exercised in his favor.

Eng. Snook v. Snook, 67 L. T. Rep. (N.S.) 389.

The recriminatory charge of adultery cannot be urged by a person who has connived at the offense.

Klekamp v. Klekamp, 275 Ill. 98, 113 N.E. 852.

When a wife was justified in leaving her husband because of his adultery, her subsequent conduct would not bar her right to a divorce on the ground of the husband's adultery.

Leidig v. Leidig, 2 Pa. Dist. 529, 13 Pa. 29.

If the adultery was committed by complainant after willful abandonment by the defendant, and can in any sense be considered as having been induced by the abandonment, it will not bar a divorce for the abandonment.

House v. House, 131 N.C. 140, 42 S.E. 546; Setzer v. Setzer, 128 N.C. 172, 38 S.E. 730, 83 Am. S. R. 666.

OPINION

Cook, J.

This is an appeal from a decree of the chancery court of Lincoln county, dismissing a bill of complaint in which appellant sought a divorce from his wife, Georgia Dunn, on the ground of willful, continued, and obstinate desertion for a space of two years.

The bill of complaint charged that the appellant was married to the defendant, Georgia Dunn, in October, 1902; that during the month of November, 1906, without any cause or justification for so doing the said defendant deserted the appellant; and that such desertion had been willful, continued, and obstinate since that date. The defendant, Georgia Dunn, did not appear or defend the suit, but the record recites that "it is agreed by and between counsel for complainant and counsel for Mrs. Julia Dunn that Mrs. Julia Dunn may intervene and defend this suit without the necessity of filing pleadings." No point is made upon the right of this third party to intervene and defend the suit, or the right to defend without the necessity of filing pleadings, or upon the nature of the defense interposed, if, in fact, any defense was interposed, by this third party; but under the conclusion we have reached, these matters are of no importance.

The appellant, complainant in the court below, testified that he was married to the defendant, Georgia Dunn, in November 1902, and lived with her until 1905 or 1906, when she deserted him; that about one year thereafter he saw her one time; and that she was then living with another man. He further testified that a little over a year after defendant deserted him and he learned that she was living with another man to whom she was alleged to be...