166 P. 127 | Nev. | 1917
By the Court,
Appellant brought suit for divorce. An answer was filed, pleading a judgment of a court of the State of Maine as res adjudicata, to which a reply was filed,
1. It is contended that the Maine judgment was nothing more than a j udgment of nonsuit, and that the trial court erred in admitting it in evidence. In support of this contention, counsel quotes from the case of Pendergrass v. York Mfg. Co., 76 Me. 509, and from numerous other authorities, among them the case of Laird v. Morris, 23 Nev. 34, 42 Pac. 11. On another phase of the case, counsel for appellant contend that, in the absence of pleading and proof as to what the law is in a sister state, we must presume that the law is the same as the law of this state. The authorities are practically unanimous in holding this to be the rule relative to the common law, but there is a wide difference of opinion on this question as to the statute law. (16 Cyc. 1084, 1085; 10 R. C. L. 895.) This court has never been called upon to lay down a rule as to what the presumption is as to the law of a sister state, and we do not deem it necessary to do so in this instance, for we are of the opinion that, no matter whether the common law or our statute controls, we are compelled to hold that the judgment of the Maine court was not one of nonsuit. At common law nonsuit was permissible only when the plaintiff did not appear to prosecute the action. Blackstone, who we believe is the most reliable authority as to the common law, says:
“When they are all unanimously agreed, the jury*441 return back to the bar; and, before they deliver their verdict, the plaintiff is bound to appear in court, by himself, attorney, or counsel, in order to answer the amercement to which by the old law he is liable, as has been formerly mentioned, in case he fails in his suit, as a punishment for his false claim. To be amerced, or a mercie, is to be at the king’s mercy with regard to the fine to be imposed. The amercement is disused, but the form still continues; and if the plaintiff does not appear, no verdict can be given, but the plaintiff is said to be nonsuit. Therefore it is usual for the plaintiff, when he or his counsel perceives that he has not given evidence sufficient to maintain his issue, to be voluntarily non-suited, or withdraw himself; and if neither he, nor any body for him appears, he is nonsuited, the jurors are discharged, the action is at an end, and the defendant shall recover his costs. The reason for this practice is that a nonsuit is more eligible for the plaintiff than a verdict against him; for after a nonsuit, which is only a default, he may commence the same suit again for the same cause of action; but after a verdict had, and judgment consequent thereupon, he is forever barred from attacking the defendant upon the same ground of complaint. But in case the plaintiff appears, the jury by their foreman deliver in their verdict.” (Blackstone’s Commentaries, Ed. 1768, p. 376.)
From this language we gather that at the common law, when a plaintiff discovered some error or defect in the proceedings, or was unable to prove an essential fact, for want of necessary witnesses or documentary evidence, and thereupon being called, and failing to appear, his default was recorded, upon which the defendant recovered his costs. But this arising from some supposed neglect or oversight, the plaintiff was not barred from commencing a new action. In the light of this interpretation, it will be seen that at common law the one essential of a nonsuit was the abandonment of the case by the plaintiff. Strictly speaking, it seems that at common law there was no such thing as a “judgment” of
“A nonsuit at common law was nothing more than a declaration by the court that the plaintiff had made default in appearing at the trial to prosecute his suit.”
In the same case, Bramwell, L. J., says:
“There really in strictness never was a ‘judgment’ of nonsuit. No plaintiff could be nonsuited against his will. He failed to- appear at the appointed time, generally at nisi prius — (I believe there were other stages of a cause in which there might be nonsuits) — and his nonappearance was recorded, returned to the court in banc, and then judgment was given against him that the defendant go without a day, etc.”
2. From a reading of the judgment of the Maine court, it is apparent that there the plaintiff did not abandon his action. The judgment reads, in part, as follows:
“And now all and singular in the premises being seen, heard and fully understood, and the material facts alleged in the libel suit not sufficiently proved to the satisfaction of the court, said libel is denied.”
3. This language clearly indicates to our minds, in interpreting it according to the common-law rules, that the case was submitted and determined on the merits. When we interpret this judgment under our statute, we reach the same conclusion. Section 5237, Revised Laws of 1912, lays down the conditions under which a judgment of nonsuit may be entered in this state:
“An action may be dismissed, or a judgment of non-suit entered in the following cases:
“1. By the plaintiff himself at any time before trial, upon the payment of costs, if a counterclaim has not been made. If a provisional remedy has been allowed, the undertaking shall thereupon be delivered by the clerk to the defendant, who may have his action thereon.
“2. By either party upon the written consent of the other.
*443 “3. By the court when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal.
“4. By the court when upon the trial and before the final submission of the case the plaintiff abandons it.
“5. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the court or jury. The dismissal mentioned in the first two subdivisions shall be made by an entry in the clerk’s register. Judgment may thereupon be entered accordingly. In every other case the judgment shall be rendered on the merits.”
It is not contended that any of these conditions existed at the time of the entry of the Maine judgment, though counsel for appellant quote the fifth subdivision, and cite the case of Laird v. Morris, supra, in support of their general contention. From a reading of this subdivision, it will be seen that “upon motion of the defendant” the court may enter a judgment of nonsuit. It does not appear that the defendant made any such motion. On the other hand we may infer that defendant sought a judgment upon the merits. This court has pretty clearly laid down the condition upon which a judgment of nonsuit can be entered in this state, in the case of Burns v. Rodefer, 15 Nev. 63, where it said:
“The plaintiffs might have asked for a nonsuit, after their evidence was struck out (Civ. Prac. Act, sec. 151; Hancock Ditch Co. v. Bradford, 13 Cal. 637; Ord v. Chester, 18 Cal. 77) ; and the court might have granted one, also, upon motion of the defendants. But it does not appear from the judgment roll that either party asked for a nonsuit, or that either objected to a submission of the case to the jury. A nonsuit cannot be granted except upon the grounds stated in the statute and as therein provided. It could not have been granted under the fifth subdivision of section 151, except upon motion of the defendants. It could not have been ordered under the fourth, because plaintiffs did not*444 abandon their case, or under the third, because they appeared, or under the second, because defendants did not give their written consent.”
4. Hence, as we have said, we find that whether we presume that the common law or a statute similar to our own existed in Maine, we must hold that the judgment was one upon the merits. If a different rule exists in Maine, it can be shown only by appropriate pleadings and proof.
5. It is also contended that the libellee filed no answer in the Maine action to the petition of the libellant, and that consequently there was no issue for that court to try. While it is true that it does not affirmatively appear that an answer was filed to the petition, it is also true that it does not affirmatively appear that an answer was not filed, while the judgment recites that libellee appeared by her attorney, W. H. Gulliver. But whether or not an issue was raised by an appropriate pleading is a matter of no consequence in an action for divorce. .As said in Ribet v. Ribet, 29 Ala. 348, actions of this nature are of a triangular sort, and such a cause is never concluded as against the court, and it may and usually does satisfy its conscience regardless of the pleadings. (Bishop, Mar. & Div., sec. 314; 7 Ency. PI. & Pr. 88.)
6. But it is contended that the trial court erred in admitting in evidence the transcript of the Maine judgment, for the reason that the answer in the case at bar does not allege the existence of certain facts essential to give the court jurisdiction to hear and determine the cause. On the other hand, respondent asserts that, since the court by which the Maine judgment was rendered was one of general jurisdiction, it will be presumed that every fact essential to give the court jurisdiction was shown. While it is a general rule that everything will be presumed in favor of a j udgment rendered by a court of general jurisdiction, there are exceptions to the rule. The presumption which generally
7. It is also contended by counsel for appellant that an action for divorce is not a proceeding according to the course of the common law, and that hence the Maine judgment should not have been admitted in evidence, since all the facts necessary to give the. Maine court jurisdiction were not pleaded nor proven upon the trial of the case at bar in the lower court. As to the correctness of the contention that an action for an absolute divorce is a proceeding not according to the course of the common law, we think there can be no serious doubt. In 14 Cyc. at page 581, we find the rule -laid down as follows:
“At the time of the establishment of the United States as an independent nation and the adoption of the common law of England by the- several states, matrimonial causes in England were within the exclusive jurisdiction of the ecclesiastical courts. These courts derived their commissions from the church, and in the determination of matrimonial causes the canonical law was applied almost entirely. Ecclesiastical courts were not established in any of the United States as a part of its judicial system, and consequently up to the time of the*446 creation of courts with a jurisdiction in divorce actions, ecclesiastical, law relating to divorce remained unadministered for want of a tribunal.”
See, also, 9 R. C. L. pp. 261, 262; Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654; Northcut v. Lemery, supra; Kelley v. Kelley, supra; Steele v. Steele, 35 Conn. 48; McGee v. McGee, 10 Ga. 477; Olin v. Hungerford, 10 Ohio, 268; Cast v. Cast, 1 Utah, 112.
8. But under section 5070, Revised Laws of Nevada, 1912, we do not think it necessary, in an action upon a judgment of a court of special or limited jurisdiction of a sister state, to plead the jurisdictional facts, though they have to be proven in case the reply denies the allegation of the rendition of the judgment, unless the reply specifically admit certain jurisdictional facts. (Etz v. Wheeler, 23 Mo. App. 449; Bruckman v. Taussig, 7 Colo. 561, 5 Pac. 152; Abb. Trial Brief, 2d ed. sec. 339; Graggoo v. Graham, 9 Ind. 212; Archer v. Romaine, .14 Wis. 375.) See, also, Phelps v. Duffy, 11 Nev. 80, 85.
Since the reply which was filed by appellant to respondent’s answer denied the rendering of the judgment pleaded, it was incumbent upon the defendant to prove all of the j urisdictional facts except the allegation in the answer that the Supreme Judicial Court of Androscoggin County, Me., in which the judgment pleaded was rendered, had jurisdiction in actions for divorce, as that allegation in the answer is admitted in the reply.
For the error committed in admitting in evidence a certified copy of the judgment of the Maine court, when evidence of certain jurisdictional facts had not been introduced, the judgment is reversed, and the case is remanded for a new trial.
