DocketNumber: No. 8714
Citation Numbers: 186 P.2d 503, 120 Mont. 437
Judges: MR. JUSTICE METCALF delivered the opinion of the Court.
Filed Date: 11/13/1947
Status: Precedential
Modified Date: 1/12/2023
I agree that the complaint was and is insufficient as a basis for a decree on the ground of willful desertion for failure to allege the time when the desertion took place and that the court erred in overruling the demurrer and motion to strike. By thus agreeing with the majority on this issue, I am not to be understood as subscribing to the rule announced in the case of Crenshaw v. Crenshaw, Mont.,
I think, however, that no useful purpose would be subserved in remanding the case for a new trial and to that extent I disagree with the majority.
The evidence does not show willful desertion on the part of defendant and affirmatively shows there was no willful desertion on her part in that plaintiff admitted that he had not established or offered to establish a suitable residence in Helena. Nor did he prove that had he done so she would have refused to move to Helena and there live with him. These are essential elements upon which to base a charge of willful desertion by the wife. Compare Vosburg v. Vosburg,
The case of Giebler v. Giebler,
The only question here involved is, Can it be said that defendant willfully deserted plaintiff without a showing that she refused to live in a suitable home, provided by him or which he in good faith offered to provide for them, in Helena? I think the evidence here fails to show willful desertion on the part of defendant.
Since it affirmatively appears from the record that plaintiff cannot make out a case of willful desertion on the part of defendant, I think plaintiff's action should be ordered dismissed.