
    Bimemiller, Appellant, v. Bimemiller.
    
      Divorce — Desertion—Refusal of libellant to live with husband.
    
    Where, in an action for a divorce on the ground of desertion, the evidence established that libellant refused to go with her husband and that she had determined not to live with him, the libel is properly dismissed.
    Argued April 27, 1926.
    Appeal No. 85, April T., 1926, by libellant, from decree of C. P. Allegheny County, January Term, 1923, No. 2219, in the case of Catherine E. Bimemiller v. Maurice W. Bimemiller.
    Before Porter, P. J., Henderson, Tkexler, Keeler, Linn, Gawthrop, and Cunningham, JJ.
    Affirmed.
    Libel in divorce. Before Shaeer, P. J., Reid and Rowand, JJ.
    Shaeer, P. J., filed the following opinion:
    The libel alleges a desertion on November 24, 1920. The letters of the libellant to the respondent written in December, 1920, show plainly that the libellant refused to go with her husband thereafter, determination not to live with her husband thereafter, assigning certain reasons for it. These letters were written at the time and show the state of affairs more surely than the testimony either of them may now give, as to what was said about their living together. There is nothing in the remainder of the evidence to show that the libellant’s attitude towards her husband ever was different from that shown in these letters, and so the evidence fails to show a wilful and malicious desertion. We are of the opinion that the exceptions, so far as they relate to the fact of a desertion, should be sustained. The exceptions are sustained and the libel dismissed.
    
      Error assigned was the order of the court.
    
      Leonard S. Levin, for appellant.
    
      Elmer L. Kidney, for appellee.
    April 30, 1926:
   Per Curiam,

This was an action of divorce; the charge was desertion. The court below dismissed the libel on the ground that the evidence did not support the allegation. AH that need be said in support of that conclusion appears in the opinion of President Judge Shaper. For the reasons stated by him, we dismiss the appeal.

Appeal dismissed at the cost of appellee, respondent below.  