McMullin

This is an action for divorce, in which plaintiff had judgment. Defendant moved for a new trial on a bill of exceptions, which was denied. The appeal is from the judgment and order denying the motion for a new trial. The suit is prosecuted by the plaintiff on the ground of desertion. The parties intermarried on the 15th of February, 1871. A son was bom March 17, 1872, and this suit was commenced April 9, 1898, in which it is charged the defendant deserted the plaintiff on April 10, 1896. The court finds: “That in the year 1877 plaintiff voluntarily separated himself from the defendant, and thereafter, until on or about the tenth day of April, 1897, continued to live *94 separate and apart from the defendant; but that the said separation was not against the wish or will of said defendant, but was wholly acquiesced in and consented to by the said defendant. That plaintiff did not, in the year 1877, willfully desert or abandon the defendant, nor was plaintiff’s separation from the said defendant with the intent then and there to desert the defendant, nor has the plaintiff ever since or at any time continued to or kept up or continued the said or any separation or abandonment, but…