
    SMITH v. SMITH et al.
    
    No. 10506.
    June 14, 1935.
    
      
      G. N. Bynum and John I. Kelley, for plaintiff in error.
    
      Etheridge, Belser, Etheridge & Etheridge, contra.
   Beck, Presiding Justice.

The court erred in striking the two amendments in which the defendant set up acts of cruel treatment upon the part of the wife. The wife is retying on acts of cruel treatment as grounds for divorce, and alleges that they were living separate, and alleges that their living in a state of separation was due to cruel treatment on the part of the husband. The husband, in these stricken amendments, alleges acts that might be termed cruel and outrageous on the part of the wife. To this extent the amendments were germane and material and should have been allowed. Moreover, if the wife was guilty of the conduct which is attributed to her in the amendments, the jury might well take them into consideration in passing upon the question of alimony, and they are certainty material for this purpose. Considering the nature of the charges made by the wife against the husband in her petition, and the nature of the husband’s defense, these amendments were both germane and material, and the court erred in striking them.

Having held that the court erred in striking the amendments, all that took place subsequently on the trial of the case was nugatory, and it is not necessary to pass upon the grounds of the motion for a new trial.

Judgment reversed.

All the Justices concur.  