88 Neb. 153 | Neb. | 1911
This suit was commenced in the district court for Sioux county. Owing to the contention between counsel as to the nature of the action and the authority of the district court to render the judgment which was entered, we copy the petition in full. It is as follows:
“The plaintiff, for cause of action, alleges that she was born in the Kingdom of Denmark in the year 1864, and in 1886, she came to Sioux county, Nebraska, and met the defendant, then a man of mature years, aged 42; that thereupon the defendant, who was then engaged in the ranch business in said county, applied to the plaintiff, who was then a very comely woman, a member of an indigent family, unlettered in the English language, or in the laws or customs of this country, to enter his employ as a domestic servant at the agreed rate of $10 a month, and, in addition, there was to be furnished by the defendant sufficient and proper quantities of groceries and materials to prepare their subsistence and other necessary articles of housekeeping and living. And plaintiff alleges that the said contract has never yet been abrogated nor set aside, but, pursuant thereto, the plaintiff entered into the sendee of the said defendant as such domestic housekeeper, and remained at said house continuously, performing such contracted services thereat until November, 1904. And plaintiff alleges, further, that the defendant never paid her any of the stipulated wages, and has wholly failed from the date hereinafter mentioned, 1887, to furnish any of the necessary groceries or other articles necessary for the said housekeeping'and
“And plaintiff alleges that during all their married life, the said defendant was habitually accustomed to the drinking of intoxicating liquors, and frequent intoxica
“Plaintiff alleges, further, that she has but small means in live stock and real estate of her own earning and saving of the possible value of $1,000, and that the defendant owns property consisting of real estate in Crawford, Nebraska, and of money deposited in the First National Bank, and of money due him from various residents of Dawes county, Nebraska, and of real estate and money loaned in Kern county, California, of the fair cash value of at least $70,000, and that defendant has threatened to convert all the said property in Dawes county into cash, and to remove it himself from said state.
“And plaintiff alleges, further, that there are no fruits of their said marriage.
“The'plaintiff therefore prays judgment that the defendant, pending this suit, be enjoined and restrained from converting into money or movable property, and removing the same from Nebraska, the property therein situated; that on the final hearing the injunction be made perpetual. Plaintiff prays, further, that she be decreed
At the time of the filing of the petition plaintiff filed with the clerk a precipe for summons with the following directions: “Indorsed only — ‘Injunction asked, and divorce.’ ”k A summons was issued and served, with the indorsement: “If defendant fail to appear and answer, the plaintiff will take judgment for divorce. Injunction asked.” A demurrer was filed to the petition, but the transcript does not show any disposition of it.
The defendant answered the petition, denying the unadmitted allegations thereof, and averring that the alleged causes of action stated in the petition are inconsistent, repugnant and improperly joined; that plaintiff is not. and never was the wife of defendant; that as Mary Hansen she was for some time in the employ .of defendant as his housekeeper and servant, but in no other capacity, that he did, long before the commencement of the action, fully pay, satisfy and discharge, by payment, the claim of the said Mary Hansen for such services, and that there was a full and complete settlement, discharge and satisfaction of all accounts between them. Plaintiff replied by a general denial.
It is insisted that the motion for a new trial was not filed until after the final adjournment of the district court. As we have seen, the journal entry of the findings and judgment of the court contains the recital that the “cause came on for hearing upon the defendant’s motion for new trial, upon consideration whereof the court overrules said motion, to which defendant excepts.” The judgment was rendered on the 3d day of December, 1908. The clerk’s filing mark on the motion for new trial shows that it was filed on the same day. There is nothing in the record proper showing when the court ad
From a reading of the petition, including the prayer, the precipe, and indorsement upon the summons, it must be apparent that the purpose of the action is for a decree of divorce, and for alimony, based and founded upon a common law marriage. No other conclusion can be drawn therefrom. It is true that there are averments by which it Avould seem that the pleader sought to recover servant’s wages for the plaintiff during the time she alleges that she was the laAArful wife of defendant. This, of course, could not be allOAved in connection with a decree of marriage Avith divorce and the $25,000 alimony claimed. The two causes of action could not be blended in the same count of the petition, nor could defendant be deprived of his right to a jury trial upon an action at laAv for wages as was done in this case. The tAvo causes of action, should it be held that there are two, are so entirely inconsistent as to require the holding of the demand for wages as mere surplusage, and not entitled to any consideration; the action being essentially in equity for divorce. The record shows without question that the
The action being in its essence one for divorce, the evidence has been examined, and it is found that the finding and decision of the district court that a marriage had not been established is approved and the decree is affirmed. The action for divorce is dismissed. The decision awarding a money judgment for wages alleged to be due is reversed, and that part of the case is remanded to the district court for further proceedings in accordance with law. The costs in this court are taxed to plaintiff.
Judgment accordingly.