Loaiza v. Caballero

after making tbe above statement of facts, delivered tbe opinion of tbe court.

Tbe findings of fact contained in aforesaid judgment are accepted.

If there can be no question as to its being incumbent upon tbe plaintiff to prove tbe action maintained by him, this essential requisite has been complied with in tbe present case, inasmuch as tbe defendant has acquiesced in tbe complaint, *125and, replying to interrogatories, distinctly stated that more than three years ago she abandoned the conjugal roof, during which time she had not even addressed a word to her husband, and that this conduct on her part was the result of their constant quarrels and the jealousy existing between them — a statement substantially borne out by the testimony of two witnesses who impute the abandonment to the wife, Mauricia Eosario Caballero.

The question here is not one of separation by mutual consent, as stated in the second conclusion of law of the judgment appealed from; but, on the contrary, it has been shown that the wife had looked upon her husband with indifference and aversion, she having left him for more than two years alone in the home that both had formed, and forgetting the marriage ties that impose upon both the duty of living as one under the same roof; 'all which acts, knowingly and. persistently done by the wife, constitute the abandonment referred to in subdivision 5, section 164, of the revised Civil Code.

Her acquiescence in the complaint, her confession in court, and her non-appearance before this Supreme Court, are facts that compel the court to give an equitable decision in the matter of costs.

In view of the provisions cited of articles 358, 364 and 371 of the Law of Civil Procedure, rule 63 of General Order No. 118, series of 1899, and the act of the Legislative Assembly of- March 12, 1902, we adjudge that, reversing the judgment appealed from, rendered by the District Court of San Juan on the 19th of last year, we should declare and do declare that the action for divorce was properly brought, and accordingly the marriage contracted between Francisco Loaiza González and Mauricia Eosario Caballero, December 2, 1899, is dissolved, without special imposition of the costs of both trial and appeal.