¶1I concur in that part of the majority opinion holding that the plaintiff should not be divorced if he has been guilty of conduct which in itself entitles- the defendant to a divorce, but I dissent from that part of the opinion which questions the sufficiency of the evidence to sustain a finding that the defendant was guilty of adultery, and dissent from the part of the judgment directing a retrial of that issue.
¶2There is not sufficient proof in the record to sustain *758any of the defendant’s allegations of cruel treatment. Possibly, if the evidence excluded by the district court had been received, the result would have been otherwise. The defendant did not file a motion for a new trial, nor assign as error the exclusion of that evidence, but has appealed to this court upon the evidence received.
¶3Applying the ordinary rules of practice to this case, it should be determined upon the record presented by the appellant; but, since there may be some reason to believe that she would have made proof of facts sufficient to defeat the plaintiff’s cause of action, I concur with the majority of the court in saying she should 'be given that opportunity. Nothing, however, can be gained by a retrial of the charge of adultery. The evidence is convincing on that score. It was sufficient to convince beyond all reasonable doubt the two juries which tried the defendant’s paramour, and his conviction was affirmed by this court. The proof is satisfactory that the defendant and her paramour were' registered at a Holdrege hotel under fictitious names as husband and wife; that in the defendant’s presence her companion stated to the hotel clerk, “We might just as well get a room and go to bed right;” that about two hours thereafter the officers of the law gained access to this room and discovered the corespondent engaged in putting on his trousers, while the defendant was in bed attired solely in a, robe de nuit and an abbreviated undergarment. The bed gave every evidence of having been occupied by two persons, and the defendant defiantly stated to the officers that they would have done as her companion had if given the opportunity. The defendant’s paramour exclaimed at the time that nothing would save him from the penitentiary.
¶4There is also other evidence in the record tending strongly to convince the impartial mind that the defendant had broken her marital vows. The defendant does not say that she can produce any other competent evidence to sustain her denial, and to the writer it seems an uncalled for waste of time to retry the issue.
¶5*759The cause should be reversed, with directions to hear evidence upon the defendant’s charges of extreme cruelty, and, if found true, the petition and the cross-petition should be dismissed, otherwise a decree of divorce should be rendered in the plaintiff’s favor.