Giannini v. Giannini , 111 W. Va. 686 ( 1932 )

In the circuit court of Brooke County (at March 1928 term) Anna Gianini obtained a divorce a mensa et thoro from her husband, Gabriel Giannini. She was also decreed certain property and the custody of their infant children. They have since lived apart except for one week in September, 1929. Within this period of attempted reconciliation she transferred to him certain real estate and personal property. She instituted this suit in November, 1929, for divorce a mensa etthoro upon the theory that the former decree had been vacated by the temporary resumption of marital relations. He first filed an answer to the bill herein, denying the right of plaintiff to any relief, and later an amended answer in the nature of a cross-bill, praying for an absolute divorce on the ground of adultery. After the taking of proof upon the issues raised by the pleadings, the court entered a final decree dismissing the bill and cross-bill, upon the ground that the decree in the former suit was in effect. The conclusion that it was, therefore, unnecessary to grant plaintiff relief which she already enjoyed did not justify dismissal of the cross-bill.

Dismissal of an original bill does not, ordinarily, justify dismissal of a cross-bill, setting up new matter and praying for affirmative relief. Hogg's Equity Procedure (Carlin's Ed.), sec. 223; Big Huff Coal Co. v. Thomas, 76 W. Va. 161,85 S.E. 171; Pethel v. McCullough, 49 W. Va. 520, 39 S.E. 199.

The decree, complained of by defendant, is therefore reversed and the cause remanded.

Reversed and Remanded.