
    Phillips v. Phillips.
    fEven if the evidence was sufficient to establish the defendant’s guilt of adultery, the verdict was contrary to law, there being undisputed evidence of a' voluntary condonation and cohabitation after notice to the plaintiff of the alleged acts tending to show the defendant had committed adultery, and the expression by him of belief in her guilt, and no evidence that adulterous acts, if committed at all, were repeated or committed after the condonation. This being so, the court erred in not granting a new trial.
    April 17, 1893.
    Argued at the last terra.
    Before Judge Bower. Miller superior court. April term, 1892.
    J.'R. Williams, C. C. Bush and R. H. Powell & Son, for plaintiff in error.
    No appearance contra.
    
   Lumpkin, Justice.

It is fortunately rare in the administration of law that a spectacle so melancholy as that presented by the record in this ease is brought to view. Nothing, certainly, ■can be more painful to human contemplation than a •daughter’s bearing witness in -public to the shame and disgrace of her own mother. If the former had been forced to the stand and given the alternative of committing perjury or exposing her mother’s guilt of the crime •of adultery, assuming that she was guilty, conscience .and duty would compel the daughter, however heartrending it might be, to publish the shame of her best .and truest earthly friend.

Por a dutiful daughter placed in such a situation, and who, with reluctance and sorrow adhered to the truth notwithstanding the agony it might cause her to do so, the heart of every good man and woman would grow tender with sympathy, and all -would admire the virtue and the courage which carried the witness through so trying an ordeal. No such feelings arise in contemplating the conduct of a daughter who, willingly and without hesitation, and because, perhaps, of unkind feeling engendered by the mother’s opposition to what she deemed an unwise marriage, goes to- a court of justice and with alacrity reveals her knowledge of scenes and incidents tending to show the mother was wantonly and shamelessly lewd. Such seems to have been the motive actuating the young woman who testified against her mother in this case, and it was mainly upon her evidence that the verdict in favor of a divorce was found. It is not for us to say whether this witness spoke the truth or not. Of this the jury were the sole judges. Their verdict shows that they believed her; and if the case stopped here, it would be our solemn duty to affirm the judgment which sustained their finding, notwithstanding the fact that the defendant was an old woman who, according to her own testimony, had been a chaste and faithful wife for twenty-five years.

Another principle of law, however, entitles her to a new trial. Section 1715 of the code declares that “if there has been a voluntary condonation and cohabitation subsequent to the acts complained of, and with notice thereof, then no divorce shall be granted.” The evidence in this case does not show beyond doubt that the defendant below was guilty of adultery. It might be sufficient, if true, to warrant the conclusion that she was guilty; but it was conclusively proved that the plaintiff had full notice of the acts alleged to have been committed by her and tending to show her guilt. Indeed, he declared his own belief in her guilt, but after he had received the notice and expressed this belief, he voluntarily condoned the alleged misconduct of his wife and cohabited with her; and there is no evidence that, if she had ever committed adultery at all, the offence was repeated after the condonation. This being so, the verdict was necessarily contrary to the law quoted from the above cited section of the code, and a new trial must. be granted. As to what the result will be, or should be, upon the next investigation, we intimate no opinion; but it may not be inappropriate to express the hope that no case like this may ever again be perpetuated in undying memory upon the records of this court.

Judgment reversed.  