
    Bailey, Appellant, vs. Bailey, Respondent.
    
      April 17
    
    May 8, 1908.
    
    
      Evidence: Sufficiency: Betting aside findings: Amendment unsupported by testimony.
    
    1. In an action for divorce on tlie ground of cruel and inhuman treatment, held, that the finding of the trial court was not against the preponderance of the evidence and therefore will not he disturbed.
    2. An amendment offered to the complaint at the close of the testimony which stated facts not established by the evidence was, properly rejected.
    
      Appeal from a judgment of the circuit court for Mari-nette county: S. D. Hastings, Circuit Judge.
    
      Affirmed.
    
    This action was brought by the appellant against the respondent for divorce on the ground of cruel and inhuman treatment. The parties intermarried in December, 1889, and have one child, a boy fifteen years of age. The proof showed that the married life of the parties had not been at all times harmonious, and that for more than a year prior to the commencement of the action they had not lived together. At the close of the testimony a motion was made to amend the 'complaint to conform with the facts, by alleging wilful desertion of the appellant by the respondent for a period of more than one year nest preceding the commencement of the actmn. The motion was denied by the court on the ground that the testimony did not show such desertion. As a result of the trial the court found .that the allegations of the complaint had not been proven, and directed that' the complaint be dismissed without costs to either party. From the judgment so entered this appeal is taken.
    The cause was submitted for the appellant on the brief of Minahan & Minahan, and for the respondent on that of W. B. Quinlan.
    
   BashpoRD, J.

This is an action for divorce on the ground of cruel and inhuman treatment, and the first error assigned relates to the finding of the court that the allegations of the complaint have not been proven, it being urged on behalf of the appellant that the finding is against the overwhelming preponderance of the evidence. A careful examination of the testimony preserved in the record leads to the conclusion that the finding here challenged is not against the preponderance of the evidence, and that consequently it cannot be disturbed. It would serve no useful purpose to review the evidence at length or to dwell upon the unfortunate differences wbicb bayo arisen, wbicb ought to be forgotten, and wbicb may yet be reconciled.

Error is also assigned upon tbe refusal of tbe court to permit an amendment of tbe complaint to conform to tbe proof, by alleging desertion on tbe part of tbe appellant by tbe respondent. We agree with tbe view expressed by tbe trial court that tbe testimony does not establish wilful desertion and that tbe amendment was not proper.

These conclusions lead to an affirmance of tbe judgment.

By the Court. — Judgment affirmed.  