Yost v. Yost , 54 Pa. Super. 365 ( 1913 )

Opinion by

Morrison, J.,

This is a libel in divorce on the ground of adultery and the respondent defended by denying the adultery and set up in her answer and bill of particulars recrimination.

A careful consideration of the testimony, arguments of counsel and the opinion of the lower court does not convince us that the learned judge below erred in refusing a decree in divorce to the libelant and dismissing the libel. The learned judge'saw and heard the parties and their witnesses and he was not convinced that the respondent had committed adultery, but he was convinced that the libelant had been guilty of that crime as set up in the answer and bill of particulars. Under the testimony we all concur with the learned court below in his conclusion, under the defense of recrimination, that there was convincing proof of libelant’s own guilt of adultery. This of itself fully justifies the refusal of a decree in divorce and the dismissal of the libel at the cost of libelant.

The question of' the guilt of the libelant, of adultery, was an issue properly raised and tried in the court below and this issue was, on sufficient testimonv. found against him.

The Act of March 13,1815, 6 Sm. L. 286, sec. 7; 1 Stewart’s Purdon’s Digest, 13th ed., p. 1246, par. 31, reads: “Tn any action or suit commenced in the said court (common pleas) for a divorce for the cause of adultery, if the defendant shall allege and prove that the plaintiff has been guilty of a like crime; .... it shall be a good defense and a perpetual bar against the same.” The opinion of the court below sufficiently vindicates the refusal of a decree in divorce and the dismissal of the libel. In our opinion it is not necessary or profitable to engage in further discussion of this case.

The assignments of error are all dismissed and the decree is affirmed at the cost of libelant.