Carroll v. Carroll

272 P. 3 | Nev. | 1928

Under the common law, the husband owed an absolute duty to support his wife, without regard to her property or income. 1 Schouler on Marriage etc. 1570; 13 R.C.L. 1188; Vickers v. Vickers (W.Va.), 109 S.E. 234, 122 S.E. 279; Norman v. Norman (W.Va.), 197 S.E. 407; Kittle v. Kittle (W.Va.), 102 S.E. 799. Without statutory aid, a wife, without suing for divorce, could bring her suit in equity to compel her husband to provide her separate maintenance. 13 R.C.L. 1188, and cases cited; 30 C.J. 1079, and cases cited. The essential allegations of her bill in equity do not include "necessity." 30 C.J. 1086, and cases cited. The Nevada statute providing for suit for separate maintenance is properly held to be remedial, and to be liberally construed. Hilton v. District Court, 43 Nev. 128, 183 P. 317.

Where a cause is tried in the court below on the theory that the pleadings raise a certain issue, the objection that the pleadings do not raise that issue cannot be made for the first time in the appellate court. 3 C.J. 727; Furlong v. White (Cal.),196 P. 903; 31 Cyc. p. 723. If the common law is to govern the subject, then appellant is entitled to the personal property and income now held and enjoyed by respondent wife, and is also entitled to the rents and profits of the wife's realty. 13 R.C.L. 1046, sec. 67, item 1053, sec. 76.

A party asking for a rehearing will not be permitted to set up new grounds in support of his petition different from those urged by him at the original hearing. 4 C.J. 629, sec. 2495 and n. 88; Beck v. Thompson, 22 Nev. 419, 41 P. 1; Gamble v. Hanchett,35 Nev. 315, 133 P. 936-937; Kirman v. Johnson, 30 Nev. 146,96 P. 1057; Rhodes Mining Co. v. Belleville etc. Mining Co., 32 Nev. 230,118 P. 813. Instead of seeking for the first time to make the point in this court, and that too on petition for rehearing, respondent should have availed herself of the benefit of rule 8, subsection 3, rules of the district court.

The statute, Rev. Laws, sec. 5055, provides that a demurrer shall distinctly specify the grounds upon which any of the objections are taken, otherwise it may be stricken. But it is further provided (Rev. Laws, sec. 5045) that objection for insufficiency of facts is never waived. Nielsen v. Rebard,43 Nev. 274, 183 P. 984.

It may be taken from the opinion in this case that it is settled law that respondent's plea as to necessity was a mere conclusion. We say the rule is that pleading conclusions of law do not aid pleadings; that a pleading is tested by the facts set forth, and if the facts are insufficient, no plea of legal conclusions will supply the deficiency. 1 Bancroft Code Pl. 90, sec. 43 and n. 3; Callahan v. Broderick, Auditor (Cal.),56 P. 782-783; Ohm v. San Francisco (Cal.), 28 P. 580-583; 1 Bancroft C.P. 91, 92 and 93, sec. 43; Branham v. Meyer, 24 Cal. 585-602; Metropolis etc. Bank v. Mounier (Cal.), 147 P. 265.

A pleading which states a conclusion of law, instead of setting out the facts, cannot be attacked for the first time on appeal upon that ground; and this is true even though the appellant has interposed a general demurrer which does not point out that specific defect in the pleading. Russ Lumber Co. v. Garretson (Cal.), 25 P. 747; Scott v. Howell (Colo.),132 P. 1144; 3 C.J. 781-784; 3 C.J. 746; 3 C.J. 728-729.

An appellate court will not reverse a judgment for an error or defect which might have been cured by amendment, but will either consider that amendment as having been made or will permit such amendment. 4 C.J. 3191. The rule obtains even where a general demurrer has been interposed, if that did not point out the specific defect. The defect here found by the appellate court to exist is certainly an amendable defect; had appellant's demurrer been sustained, respondent would have had a right to amend if that could be done; the findings show that the facts did in fact exist. Gallagher v. Dunlap, 2 Nev. 326; Cal. St. Co. v. Patterson, 1 Nev. 151; Rule VIII of the District Court of Nevada; Heflinger v. Heflinger (Ga.), 132 S.E. 85.

An error which does not affect the substantial rights of the appellant will not be sufficient to warrant reversal of a judgment. 4 C.J. 908; Lorden v. Stapp (Ariz.), 192 P. 246; Furlong v. White (Cal.), 196 P. 903; State v. Lorenz et al. (in equity) (Wash.), 60 P. 645; Mitchell v. Bromberger, 2 Nev. 345; Murphy v. S.P. Co., 31 Nev. 120, 101 P. 322. We find statutory recognition of the principle involved by secs. 5320 and 5358, Rev. Laws. Further, we find the principle, established by statute in criminal appeals, has been by the decisions of this court applied to civil appeals. See the Nevada decisions cited above, and, also, S.N.M. Co. v. Holmes M. Co., 27 Nev. 108, 73 P. 759. And it is an inherent power of an appellate court to decide that an error was harmless and to refuse to disturb a judgment because of it. 4 C.J. 908.

OPINION Several grounds are urged as reasons why a rehearing should be granted in this case.

It is insisted first that, in view of the fact that it was the duty of the husband, at common law, to support his wife, it was not necessary that the defendant plead the facts showing the necessity of contribution by the plaintiff. 1. This contention is now made for the first time. In fact, the defendant seems to have proceeded in the trial court upon the theory that it was necessary to plead such necessity. On no other theory can we account for the allegation wherein it was attempted to plead it. We have held that a party cannot change his position in this court. Wheeler v. Hurley, 49 Nev. 70, 236 P. 559.

2. Pursuant to a long line of authorities, this court will not grant a rehearing in order to consider a point not made when the case was presented on the original hearing. A few of the cases so holding are: Beck v. Thompson, 22 Nev. 419, 41 P. 1; Gamble v. Hanchett, 35 Nev. 319, 133 P. 936; Kirman v. Johnson,30 Nev. 146, 93 P. 500, 96 P. 1057; Rhodes M. Co. v. Belleville Co., 32 Nev. 230, 240, 106 P. 561, 118 P. 813; Nelson v. Smith,42 Nev. 302, 176 P. 261, 178 P. 625; Pedroli v. Scott, 47 Nev. 313- 321, 221 P. 241, 224 P. 807, 31 A.L.R. 841.

However, without deciding the point, we think that under the law the contention is not well founded. Some of the authorities in point are: 13 R.C.L. p. 1201, par. 234; note IX to Hubbard v. Hubbard, 6 A.L.R. at page 70; 30 C.J. p. 1090, sec. 901; Hunt v. Hayes, 64 Vt. 89, 23 A. 920, 15 L.R.A. 661, 33 Am. St. Rep. 917; Prescott v. Webster, 175 Mass. 316, 56 N.E. 577.

Such seems to be the rule even in England. In Liddow v. Wilmot, 2 Starkie, 86, Revised Reports, 684, Lord Ellenborough said:

"* * * The first question for consideration is whether the defendant turned his wife out of doors, or by the indecency of his conduct precluded her from living with him, for then he was bound by law to afford her means of support adequate to her situation, but if either from her husband, or from other sources, she was possessed of such means, the law gives no remedy against the husband. He is liable only in case of the insufficiency of her funds."

Other points are urged in the petition, but, not having been suggested heretofore, cannot be considered.