51 Neb. 412 | Neb. | 1897
The defendant in error, Hannah Hard, exhibited to the district court for Richardson county her petition in which she alleged that she was married to the defendant therein, Gotfried Hard, in the year 1862, and that the parties named lived and cohabited together until the year 1885, at which time a separation took place in consequence of the defendant’s cruel and inhuman treatment; that in the year last mentioned the defendant commenced an action in said court in which he prayed for a decree of divorce from the plaintiff and which, on the 19th day of March, 1886, resulted in a decree in accordance with the prayer of his petition; that there was no personal service of process upon the plaintiff, as defendant in said action, nor was she in any manner personally notified of such proceeding; that the only pretense of service therein was the publication of a notice, which for reasons specifically stated, was wholly insufficient to confer jurisdiction
The first assignment of the petition in error which calls for notice is that the petition below fails to state a cause of action, since, as claimed, the allegation of fraud is in general terms only without the statement of any facts Avhatever. We do not, however, so construe the petition. It appears therefrom that the matters alleged in the defendant’s action for a divorce were wholly false; that the evidence adduced to sustain the allegations of the petition, viz., the willful desertion by the plaintiff as the defendant therein, was false and perjured; that the plaintiff Avas not, as charged, guilty of desertion, but had been driven from her home by means of the inhuman treatment, specifically alleged, of the defendant. Such a pleading is sufficient when assailed by a general demurrer. The proceeding was not, as counsel assume, one for the opening of the decree under the provisions of the Code, but was, tested by the allegations of the petition, an original action. (Smithson v. Smithson, 37 Neb., 535.)
It is claimed that the defendant was not permitted to
Lastly, it is argued that the district court erred in refusing to require the plaintiff to give security for costs. It is, we think, clear that the plaintiff was a non-resident 'of this state, and that the motion of the defendant should have been sustained. But inasmuch as the latter is by the final decree required to pay all costs of the case, the ruling assigned is error without prejudice. (Walker v. Russell, 73 Ia., 340.)
Decree affirmed.