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.),
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.),
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,
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,
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.),
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.),
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,
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.),
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. *191
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,
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,
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,
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. *192