¶1(dissenting).
¶2In my judgment the testimony, as the same appears in the record before us, does not warrant the .findings made by the district court, namely, that the plaintiff was justified in living separate and apart from her husband, the defendant.
¶3Probably the most serious charge against the defendant made by the plaintiff in her testimony is that, after his return from an outing in the mountains, he “bragged” about having slept ‘ ‘ with a woman up there. ’ ’ That is positively denied by the defendant. And he further stated (which is not denied by plaintiff) that while traveling in the mountains he met a party of young people, among whom was one of his own sisters, and also a sister of the plaintiff, with a number of other young people. As I view it, the circumstance of there being a company of young people together strongly goes to corroborate the fact that the defendant was not guilty of any such an offense as plaintiff in her testimony intimated. That statement on the part of the plaintiff is not corroborated by any witness nor by any circumstance in the case.
¶4It is true plaintiff testified that the defendant was addicted to drink, but the only serious charge made in that regard is that on the Fourth of July defendant attended a baseball game .and came home somewhat intoxicated. I have never understood that such slight indiscretions on the Natal Day of the Republic were sufficient ground for either divorce or separate maintenance. However, if it be the law, I very much doubt that the American public will accept it as a good law.
¶5In’ addition to all of this, the defendant in his answer affirmatively alleged that he had not only always furnished plaintiff with a home, but that he is now willing and ready to furnish her with a comfortable home and provide for her the *100necessaries of life, and all he asks in return is that she will return to his home and perform her part of the marital contract. Defendant testified in defense that he had, since his wife left him, endeavored to get her to return; that she left against his will; that he did not know that she was going until the morning before she left; that he is now ready and willing to take her back, and desires to do so and to furnish her a home. That testimony stands uncontradicted in the record, and no attempt was made to show that the offer was not made in good faith. The testimony further shows that the defendant is able to furnish plaintiff with a home. True, the court made no finding as to whether the defendant’s offer was made in good faith. As the fact is not disputed, I am unable to determine why it should not be accepted- as having been made with an honest desire to resume the marital relations existing between the parties. As I understand the authorities, even though the wife was justified in the first separation, an honest effort on the part of the husband' to terminate that separation, and to take his wife back and treat her as a wife should be treated, will defeat an action for separate maintenance. Creasey v. Creasey, 168 Mo. App. 98, 151 S. W. 215; McMullin v. McMullin, 123 Cal. 653, 56 Pac. 554; Ivanhoe v. Ivanhoe, 68 Or. 297, 136 Pac. 21, 49 L. R. A. (N. S.) 86; 21 Cyc. 1602.
¶6The defendant in this action is a young man thirty-four years old, a farmer by occupation. The plaintiff is a young woman twenty-six years old. As I understand the decree of the district court, it is to remain in full force for the remainder of the joint lives of these parties. In other words, the defendant is to be prohibited from remarrying, is to be compelled to pay monthly for the support of plaintiff during all of that time, and is to be deprived of the companionship of his wife upon testimony which, in my judgment, gave her no valid ground for living separate and apart from him. I do not wish to be understood as holding that the defendant, as shown by the record, was not guilty of most reprehensible conduct in his treatment of plaintiff. His apparent neglect of her cannot be justified. But I am of the opinion that he, having *101attempted to get his wife to return to him, and stating in his testimony that he is willing to have her return and desires that she do return to him, should be given one more chance.
¶7For the reasons above stated, I dissent.