¶1 In this cause Mr. Chief Justice Ellis, Mr. Justice Brown and M. Justice Davis are of the opinion that the decree of the Circuit Court should be affirmed; while Mr. Justice Whitfield, Mr. Justice Terrell and Mr. Justice Buford are of the opinion that the said decree of the Circuit Court should be reversed and the cause remanded with directions that the Chancellor enter an order dismissing the Bill of Complaint. When the members of the Supreme Court, sitting six members in a body and after full consultation, it appears that the members of the Court are permanently and equally divided in opinion as to whether the decree should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the Court, the decree should be affirmed; therefore it is considered, ordered and adjudged under the authority of State, ex rel. Hampton, v. McClung, 47 Fla. 224, 37 So. Rep. 51, that the Decree of the Circuit Court in this cause be and the same is hereby affirmed.
¶2 Affirmed.
¶3 On Petition for Rehearing
¶4 Appellant has filed Motion for rehearing upon the theory that the order of this Court permitting “leave to complainant husband to amend his bill of complaint so that the same may set up' any other ground of divorce” and with the further provision that the defendant wife may file answer to such amended bill is not in accord with previous decisions of this Court. The cases of Guggenheimer & Co. v. Davidson, 62 Fla. 490, 56 Sou. 801; and Barry v. Willard, et al., 117 Fla. 236, 157 Sou. 669, are cited in support of that contention. What is said in those cases is not controlling. In those cases this Court condemned amended bill of complaint which set up a new and materially different cause of action. In the suit now before us the cause of action is for divorce and when the bill is amended the cause of action will be the' same.
¶5*711 When the- defendant is furnished with copy of the amended bill and given an opportunity to answer the allegations setting up other grounds of divorce, she will have had the opportunity to exercise the right of her day in court and, of course, may be heard upon the issues made by the pleadings as amended.
¶6 Therefore, the petition for rehearing should be denied.
¶7 (dissenting).—I think the decree of divorce rendered on June 8, 1936, from which the appeal in this case was taken, should be affirmed.
¶8 The case was tried by the Chancellor oii bill of complaint, answer and testimony taken ore tunnus before the court. The ground alleged for the divorce was a statutory one of desertion and it was alleged that the desertion began in August, 1932. The bill was filed, April 3, 1935, but in the meantime Mrs. Baptist procured a decree for separate maintenance and attorneys’ fees on November 28, 1932, on her bill filed in September, 1932. In her answer to the bill of complaint in the instant case she avers that the decree in the proceeding begun by her “validated and legalized the separation” of herself and husband, on which separation Baptist’s bill for divorce was founded.
¶9 That averment is not well founded for the reason that there can be no decree in this State a mensa et thoro, but must be a vinculo matrimonii.
¶10 An examination of the record in this case satisfies me that the decree rendered by the Chancellor in the instant case, divorcing the complainant Baptist from his wife, finds ample support in the evidence.
¶11*710 The order of the court reversing the decree and allowing the complainant in the divorce suit to amend his bill by alleging another and wholly different ground for divorce as a basis for a decree of divorce is contrary to the doctrine announced in Barry v. Willard, 117 Fla. 236, 157 South. Rep. 669, in which it was said that to set up in an amended bill a cause of action wholly inconsistent with the set-up in the original bill is not allowable. The amendment proposed to be allowed would be in effect the institution of á wholly different suit; at least, wholly different grounds for divorce, which is not consistent with the rule announced above. See Guggenheimer v. Davidson, 62 Fla. 490, 56 South. Rep. 801.
¶12 Therefore I adhere to the views entertained by me in the decision of this Court filed on April 27, 1937, in which by a divided court the decree of divorce was affirmed.