majority"> HARRIS, J.

The evidence is irreconcilably contradictory. If the account which the plaintiff gives of their married life is true, then the defendant has been guilty of inexcusable cruel conduct, and, under the laws of the land, she would be clearly entitled to a divorce. If, on the other hand, his story is true, he has not been guilty of cruel and inhuman treatment, but, on the contrary, the conduct of the plaintiff has been such as would entitle the defendant to a decree of divorce, although he does not ask for a divorce. The testimony was not taken before a referee, but the witnesses testified in open court and in the presence of the circuit judge; and when the last witness had concluded his testimony the trial judge immediately announced his decision denying the prayer of the plaintiff for a divorce, and subsequently written findings were filed. Among the find*153ings of fact made by the Circuit Court are tbe following :

“The court further finds that plaintiff has failed to satisfactorily establish the alleged acts of cruelty or abusive language or other acts of ill treatment as alleged in her amended complaint and supplemental complaint, and has failed to establish that she has suffered any mental anguish or physical pain as alleged in said amended and supplemental complaint.

“The court further finds that the plaintiff is not without fault in the premises, but, on the contrary, is at fault, and in this connection the court finds that both plaintiff and defendant are at fault, and that their mistreatment of each- other was mutual, and that plaintiff was a willing and active participant in the alleged quarrels and physical encounters alleged in said amended supplemental complaint; that defendant did use unbecoming language to the plaintiff, but that plaintiff used language toward and to the defendant of the same class and equally as forcible, and that both parties are equally and mutually at fault in this respect.

“The court further finds that plaintiff has failed to satisfactorily establish the alleged acts and conduct of the defendant toward his said children, or any of them, as alleged in said amended and supplemental complaint.”

1-3. Although the cause must be tried and determined here de novo, yet when we find, as we do here, a paper record containing irreconcilable contradictions upon all material points, we are disposed to give much weight to the findings of the trial judge, for the reason that he saw the witnesses in action, and thus had the benefit of a kind of evidence which cannot be preserved and presented to an appellate court: Scott v. Hubbard, 67 Or. 498, 505 (136 Pac. 653); Hurlburt v. Morris, 68 Or. 259, 272 (135 Pac. 531); Tucker v. Kirkpatrick, 86 Or. 677, 679 (169 *154Pac. 117). It cannot possibly serve any nsefnl purpose, not even a temporary one, and much less a permanent one, to give an extended recital of the testimony found in the transcript. We have, however, carefully read and considered the record. We have deliberated upon the recorded testimony fully realizing that a decree of divorce is to be granted or withheld from the plaintiff as a matter of legal right and not as a matter of grace.

4, 5. The fact that there are five children and the additional fact that the property is.so situated that it cannot well be divided without material loss are circumstances which emphasize the need of care in examining the evidence, although they cannot affect the question as to whether or not the defendant has been guilty of cruel and inhuman treatment; for, if he treated her as she alleges, she is entitled to a divorce as a matter of legal right and regardless of what might happen to the property. After having examined the record with much care, and after having given to it our best thought, we find ourselves unable to say that the evidence for the plaintiff warrants us in disturbing- the decree of the Circuit Court.

6. It appears that the cause was tried in the Circuit Court upon short notice to the parties, and that, although they were willing to proceed and did not object to going to trial, they had but little time for preparation ; and in view of this fact, together with the added fact suggested at the hearing that the plaintiff could, if she had been given more time, have secured additional witnesses, we think that the decree should be without prejudice to another suit by the plaintiff as permitted by Section 411, Or. L. It is therefore ordered that the decree be affirmed, without costs to *155either party in this court, and without prejudice to another suit. Affirmed.

McBride, C. J., and Benson and Burnett, JJ., concur.

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