Harrigan

Appeal from the judgment denying plaintiff a divorce.

It appears from the findings that on the ninth day of September, 1894, the defendant willfully deserted the plaintiff, and that such desertion continued for more than one year, when defendant became insane, and was duly committed to the State Hospital for the Insane at Napa, where he has ever since remained. This appeal presents the sole question as to whether or not a divorce can be granted against an insane defendant whose insanity did not exist at the time the right to a divorce accrued. Under our laws marriage is a civil contract, entered into by competent parties. The right of either party to such marriage to obtain a divorce from the other is given by the code, on the ground, among others, of willful desertion continued for one year. (Civ. Code, secs. 92,107.)- The plaintiff, therefore, on account of the willful derelictions of defendant, had the right, given her by the statute, before defendant became insane, to procure a dissolution of the bonds of matrimony. Was this right taken away or suspended by reason of defendant’s subsequent insanity? In criminal cases,'although defendant was sane when the crime was committed,…