226 P. 511 | Mont. | 1924
delivered the opinion of the court.
Alleging that defendant had been guilty of extreme cruelty toward her, plaintiff brought this action to obtain a decree of divorce from him on that ground.
The defendant filed an answer to the complaint, in which he denied the acts charged against him by plaintiff as her grounds for divoree, and by way of counterclaim and cross-complaint set up a cause of action for divoree upon the ground of extreme cruelty. To this counterclaim plaintiff filed a reply. The cause was tried before a jury. In response to special interrogatories submitted to them, the jury found that defend
Appellant’s only specification of error is that “The court erred in rendering a judgment for divorce in favor of the respondent because the cross-complaint does not state a cause of action.”
No general or special demurrer was filed to the counterclaim, and no attack whatever was made thereon in the lower court; but its sufficiency is questioned for the first time on this appeal. So far as the record here discloses, no objection was made to the introduction of testimony thereunder at the trial.
As to the allegations of his counterclaim the defendant, in effect, became a plaintiff, and whether his pleading states facts sufficient to entitle him to affirmative relief against the plaintiff is determined by the same rules which would be applied to it as an original complaint (Broat Lumber Co. v. Van Houten, 66 Mont. 478, 213 Pac. 1116), and the general rules of pleading are applicable thereto (Word v. Moore, 66 Mont. 550, 214 Pac. 79).
A failure to question the sufficiency of a complaint by de murrer or otherwise in the district court does not amount to a waiver of the right to question it afterwards, but when its sufficiency is attacked for the first time on appeal the objection is regarded with disfavor. (Munson v. Solace, 66 Mont. 70, 212 Pac. 1103.)
Section 9191, Revised Codes of 1921, provides: “The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect.”
In the instant case the defendant’s counterclaim states the jurisdictional facts of the marriage of the plaintiff and defendant and the residence of the defendant in this state for a period of more than one year immediately prior to the filing of the same. While the further allegations thereof do not make up a model pleading, the only defects therein urged by appellant are technical and were easily curable by very slight amendments.
In the decree which was entered, after reciting the preliminary matters of submission of the issues to the jury and its finding that the defendant had not been guilty of extreme cruelty toward plaintiff, but that plaintiff had been guilty of extreme cruelty toward the defendant, the court continues, “and the court having considered said verdict and all of the evidence offered and being advised in the premises, and it appearing to the court that the findings of the jury were just and fully warranted by the evidence and that such findings should be adopted by the court * * * and that the plaintiff was guilty of extreme cruelty toward the defendant and that the allegations of defendant’s counterclaim and cross-complaint have been proven and were true,” and in consideration thereof denied the plaintiff the relief which she sought, and granted the defendant a divorce from the plaintiff.
From the foregoing it appears that the cause was fully and fairly tried upon the merits without any objection to the sufficiency of the defendant’s counterclaim or to the introduction
The judgment appealed from is affirmed.
Affirmed.