Hubbard v. Hubbard

²⁹² Stockbridge, J., delivered the opinion, of the Court On the 27th of May, 1915, a decree was passed in a case between the same parties as those who are parties to this record, upon a bill filed originally as a bill for alimony, and subsequently by amendment converted into a bill for divorce a mensa, et tlvoro. Three days after the entry of the decree in that case an appeal was taken to this Court ( 127 Md. 617 ), and the case having been heard here the decree of the Circuit Court Ho. 2 of Baltimore City was affirmed on January 21, 1916. Shortly following the decree of the Circuit Court Ho'. 2 of Baltimore City, to which reference has just been made, namely, on July. 1st, 1915, Mrs. Hubbard swore out a warrant for the arrest of her husband 'charging desertion and non-support, Mr._ Hubbard was absent from the city at the time, and did not return to Baltimore until about the middle of that month. Immediately upon his return he surrendrred himself, and the case was set for a hearing on the 19th or 20th of July.

When the matter was taken up before the magistrate there appears to have been some discussion relative to a pos7 sible reconciliation between the parties, and without final action there, either upon the theory of a lack of jurisdiction on the part of the magistrate or for some other reason, the case was sent to the Grand Jury, which subsequently found an indictment. The criminal proceeding does not appear to have been pushed to a conclusion, but was stetted by the Statens Attorney without prejudice to the assertion of the rights of the parties in an equity Court. On September 28th, 1916, the bill of complaint in this case was filed. It contains three prayers: the first, for alimony pendente,,HiMs'and permanent alimony; the second, for an injunction to restrain Mr. Huibbard from disposing of certain household effects and furniture; and third, the genera). prayer for relief.©# ’ The evidence consists largely of the testimony of the, pag^ ties to this suit and is contradictory on material points.

It ²⁹³ would be idle to attempt to reconcile their stories, or account for the discrepancies by any supposed lapse of menory. The alleged foundation for Mrs. Hubbard’s suit is this; that some time during the month of July, 1915, or approximately two months after the dismissal of her former bill for a divorce, and after the hearing before the Magistrate of the proceeding instituted because of the non-support, Mr. Hubbard did return to the house on Madison avenue which belonged to the parties, and although not occupying the same room with his wife, did during some week or ten days take his meals or some of them with his wife and others, who were staying at the house, thereby effecting at least a partial reconciliation of the parties. Mr. Hubbard, on the other hand, denies most emphatically that he ever took a meal at the house or staid in the house over night, and insists that the various witnesses who testified to his presence there were mistaken in their estimates of time by at least one year. He does admit that he paid a brief visit to the house for the purpose of getting some of his clothing, but insists that that was all, and that the total length of time that he was so in the house was very brief.

In the course of the examination it was admitted (Record, page 28) by the counsel for Mr. Hubbard that there was nothing to prevent him from going home. Of the conflicting statements made by Mr. and Mrs. Hubbard, there is no corroboration of Mr. Hubbard’s version. On the other hand Mrs. Hubbard is supported by the testimony of the son of the parties, though apparently some animus existed