Olson v. Olson

Citations

• 27 Pa. Super. 128
• 1905 Pa. Super. LEXIS 19

Syllabus

<p>Divorce — Desertion—Insufficient evidence to sustain decree.</p> <p>Separation is not desertion. Desertion is an actual abandonment of matrimonial cohabitation with an intent to desert wilfully, and maliciously persisted in without cause for two years. What may have been desertion in its inception, but has become a separation with mutual consent within two years, is not ground for divorce. The mutual consent that will prevent a divorce upon the ground of desertion may be inferred from the conduct of the parties, and need not be put in the form of a solemn written agreement.</p> <p>Uncontradicted testimony may not be rejected capriciously in a divorce case any more than in other cases; but courts are not bound to accept as absolute verity the testimony of a libellant that the libellee wilfully and maliciously deserted him, such testimony being given in answer to leading questions and without being subjected to the test of cross-examination, where, in addition to its inherent weakness or improbability, a natural inference may be drawn from his conduct that is wholly inconsistent with it.</p> <p>Courts ought never to sever the marrigae contract, but where the ap; plication is made in sincerity and truth for the causes set forth and no other, and fully sustained by the testimony.</p> <p>A husband, a libellant in divorce, alleging desertion, testified that when he returned from work at noon on a day named, he found that most of the furniture of his house had been taken away; that he had seen his wife but twice since that time; that she gave no reason for' leaving him, and that he knew of none. He said nothing of previous disagreements and it did not appear that he made any effort to find out why she left him, or to invite her back. On the contrary, it appeared that ha. voluntarily paid her a certain sum per week during a portion of the period of alleged desertion, He gave no explanation of why he made this payment. Held, that the evidence was insufficient to sustain a