MARGARET S. HILL, Petitioner, v. SAMUEL D. HILL,

Respondent. MOTION FOR REARGIIMENT. Argued March 11, 12, 1959. Decided April 24, 1959. 1. On a motion for reargument the Supreme Court is required to consider only such points of law as were raised on the original argument and overlooked by the Court. 2. Under a statute authorizing the granting of a decree of divorce for wilful desertion for a specified period of time, a divorce may be granted where the statutorily specified period of time elapsed at the time of the hearing, although the suit was instituted prior to the expiration of such period of time. 3. Where an action of divorce for wilful desertion was instituted before the expiration of the statutorily prescribed period of time, but was withdrawn and subsequently reinstated after the expiration of such period of time, a decree of divorce was properly granted. On motion for reargument of a decision of this Court affirming a decree of divorce against the petitioner, motion denied. R. F. D. Smallwood Law ilssociation for petitioner. Momolu S. Cooper for respondent. delivered the opinion of the MR. JUSTICE Court.* HARRIS The above-entitled case was disposed of during the October, 1958, term of this Court, with judgment in favor of the present respondent. The present petitioner (defendant in an action of divorce for desertion in the court below), feeling that some important points of law had been inadvertently overlooked, filed a petition in the office of the clerk of this Court for a reargument of the case. Mr. Justice Mitchell, one of the concurring Justices indicated his desire to have said case reargued. Although the petition for reargument contains five counts, the only � Mr. Justice Pierre was absent because of illness and took no part in this case. LIBERIAN LAW REPORTS 393 one stressed by counsel for the appellant was Count “3,” which reads as follows : “That our statute on desertion makes it mandatory that a period of twelve calendar months of wilful desertion expire before a party would be entitled to a divorce on this ground. Appellant submits that there is no showing that she refused to live with appellee any time before June, 1956, according to appellee’s own witnesses, and that, taking for argument’s sake that she did refuse in June, August or October, as alleged by appellee, nevertheless the period of time from June, 1956, to February 26, 1957, the date of appellee’s complaint would not be one calendar year, in which case the statutory time would not have expired.” The petitioner, in arguing the said count of his petition before this bar, contended that the first action of divorce for desertion was filed on September 20, 1956, and withdrawn and refiled on February 26, 1957, establishing as the date of the commencement of the desertion, February 12, 1956; that the time from the date when the desertion is alleged to have commenced to the time of the withdrawal and refiling being approximately seven months, the plaintiff should have waited a period of approximately five months longer before refiling his action, which would have completed the twelve calendar months of desertion before the cause of action would have accrued ; for, in fact, from the filing of the action to its withdrawal, all avenues for the negotiation of peace and for the wife to return to her marital duties were closed and therefore could not be computed as a portion of the twelve calendar months, or one calendar year, and hence the statutory time had not expired; and therefore plaintiff was not entitled to his divorce. This Court has said in Syllabus “I” of Clarke v. Barbour, 2 L.L.R. Is (1909) : “Courts will only decide upon issues joined between the parties specially set forth in their pleadings.” Upon the authority of the decision cited, supra, let us have 394 LIBERIAN LAW REPORTS recourse to the pleadings in the case itself and see if such an issue was ever raised. The pleadings ended with the reply of the plaintiff. In Count “3” of defendant’s answer we have the following : “3. And also because defendant says that plaintiff, during the September, 1956, term of this court, instituted an action of divorce for desertion against defendant. Defendant appeared and answered. The cause was called for hearing during the December, 1956, term of this court. The plaintiff rested evidence; but before the defendant could produce witnesses, the Judge disbanded the jury and awarded a new trial. Thereupon the plaintiff unreservedly withdrew his entire action, and since that time, that is, about fifteen days ago, the plaintiff has not asked his wife to return to her marital vows, neither has he shown her a place where she could live with him. Defendant submits that plaintiff could not bring another action of divorce until a year had expired after he withdrew his entire previous action. Defendant prays the court to take judicial notice of its record. And this the defendant is ready to prove.” The plaintiff in replying to the above count of the defendant’s answer, alleged the following in Count “5” of his reply: “5. And also because, further, to Count ‘3’ of the answer, plaintiff says that the law governing the filing, withdrawal and amendment of complaints permits the plaintiff to withdraw his action and amend or file a new one at any time before the cause is ready for trial, and there is no requirement that he wait for another period of time to elapse before he files his new complaint, once the cause of action has accrued. Wherefore plaintiff prays that Count ‘3’ of the answer be dismissed. And this plaintiff is ready to prove.” LIBERIAN LAW REPORTS 395 It would be well to mention that, during the argument of the matter before this Court, we inquired as to whether the plaintiff actually withdrew his action without reservation; but the notice of withdrawal itself proved that the cause was withdrawn with reservation. From Count “4” of defendant’s answer, it can be clearly seen that the only issue raised by defendants as to a time element was : “Defendant submits that plaintiff could not bring another action of divorce until a year had expired after he withdrew his entire previous action. . .” Nowhere in the answer of the defendant (which was the only pleading filed by her, pleadings having rested with the reply of the plaintiff) is it contended that the period of time intervening between the filing of the first action and its withdrawal and refiling could not be computed as a portion of the calendar year required by statute to elapse before a cause of action for divorce on the ground of desertion could accrue. It then necessarily and logically follows that this Court has made no mistake by inadvertently overlooking any fact or point of law raised in the pleading, brief or argument of defendant-appellant in this case. But for argument’s sake, supposing such a contention had been raised, as presented in Count “3” of the petition for reargument, it is the opinion of this Court that it would be untenable. “Desertion is not only a specific act but a continuing course of conduct. Hence it is a general rule that desertion in order to constitute a cause for divorce must have continued for the time specified by the statute, next before the commencement of the proceedings for the divorce. There are, however, decisions to the effect that, under a statute authorizing a divorce for wilful desertion for a specified time, a divorce may be granted where the time specified had elapsed at the time of the hearing though the libel was filed before such time.” 14 R.C.L. 361-62 Divorce and Separation � 148. 396 LIBERIAN LAW REPORTS It is clear from the citation of law quoted, supra, that the time specified by statute to elapse before an action of divorce can be granted need not necessarily elapse before the filing of the action, but must have elapsed before or at the time of the hearing of the cause. In the instant case, the date of the commencement of the desertion is alleged to have been on February 12, 1956; the action was withdrawn and refiled on February 26, 1957, a little over one calendar year or twelve months thereafter, which makes the petition for reargument unmeritorious. The motion for reargument is therefore denied, and it is so ordered. Costs to be paid by the appellantpetitioner. Motion denied.