Neary v. Neary

137 So. 236, 103 Fla. 299

• Court: Supreme Court of Florida
• Decided: October 27, 1931
• Status: Published

Opinions

Per Curiam.

This was a suit for divorce. Constructive service was had by publication. The Bill alleged one statutory ground for divorce, ie., willful, obstinate and continued desertion for a period of one year prior to filing of Bill. After testimony taken in due course before a Master the Chancellor entered an Order dismissing the Bill without prejudice. Testimony of the complainant was elicited in the manner denounced in Chisholm vs. Chisholm, 98 Fla. 1196, 125 Sou. 694, fourteenth headnote, page 1216, test 98 Fla. Even then neither the elements of willfulness or obstinateness of the alleged desertion was proven by this witness. There was no effort to prove-, either of these elements of the statutory ground by any other witness. Desertion is not proven by any witness. It is true that the complainant in answer to the question: “Did he leave you?” answered “Yes”. That answer proved nothing material. The complainant' utterly failed to prove the allegation of her Bill.

The decree is affirmed.

Affirmed.

Buford, C.J., and Ellis and Brown, J.J., concur.

Whitfield, J., concurs in the opinion and judgment'.

Terrell and Davis, J. J., dissent.