1. Where a final decree was entered in a maintenance suit in favor of the complainant wife, based on a stipulation made in open court rather than on evidence, and the stipulation was entered under a misapprehension on the part of the defendant husband and his counsel as to its legal effect, whereby the defendant lost a substantial right through accident and without any intention on his part or his counsel to lose it, viz.: the right to sue for divorce, inasmuch as the final decree impliedly adjudicated that the husband had abandoned the wife, held, that such adjudication of abandonment is jurisdictional, and the final decree was therefore opened and set aside and an order made consolidating the two suits, so that the husband's divorce petition became a counter-claim in the maintenance suit.
2. The complainant held to have left the marital bed and not returned at any time. However, the defendant did not make such just advances as he should have, and it is not improbable that such just advances would not have been successful in securing a reconciliation.
3. Although complainant quit defendant's bed, it did not justify his separating from her after only four months, especially since he was partly at fault for the disagreements that had arisen. Held, defendant has failed to prove willful, obstinate and continued desertion by his wife.
4. Defendant has not neglected or refused to maintain and provide for his wife and family in a suitable manner and therefore is not guilty of abandoning her.
5. Since the final decree was opened to let in defendant's alleged cause of action, and after full hearing it now appears he has no such cause of action, it follows that the original stipulation for a final decree calls for a re-entry of the decree.
PER CURIAM.
The decree appealed from will be affirmed, for the reasons stated in the opinion delivered by Advisory Master Herr in the court of chancery.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 14.
For reversal — None.