4 Nev. 469 | Nev. | 1868
By the Court,
This appeal is from a decree made in the Fourth District Court, in an action for divorce. Although the appeal is from the entire decree, the only objections presented are to such portion as touches property. It is claimed that the Court erred in awarding the whole common property to respondent, and in barring appellant of all homestead claim.
In a proper' case the Court would have such power. (Miller v. Miller, 33 Cal. 353 ; Gimmy v. Gimmy, 22 Cal. 633 ; Gimmy v. Doane, 22 Cal. 635.) Here no such issue ivas presented. The pleadings say nothing upon the question of property; the appellant might have well believed from the complaint that no such question was made. In Gimmy v. Gimmy, and Gimmy v. Doane, before cited, which partially overrule Dye v. Dye, (11 Cal. 163) it is said upon petition for rehearing: “ It is true that these averments are quite too general in their terms, there being a want of precision and certainty, and if demurrers had been filed to them, on the ground that they were ambiguous and uncertain, they would undoubtedly have been sustained. But the appellant having failed to demur, he is deemed to have waived the same, (Practice Act, Sec. 45). They do not properly come within the latter clause of said section, because sufficient facts ate stated, although they lack the requisite precision and certainty in the manner of their statement.”
This very liberal rule fails to reach this case where there is no averment. The decree, so far as it purports to make disposition of or direction concerning property, is reversed, and the cause remanded, with leave to both parties to amend their pleadings.
