By the Court,
Belknap, C. J.:
In an action for divorce uppn the ground of extreme cruelty, brought by the wife, the husband defaulted. Proofs were taken, and a decree of divorce entered dissolving the marriage and awarding the custody of the children to the husband in accordance with the prayer of the complaint. Afterwards, and upon the 8th day of February last, upon notice to reform and modify the judgment and decree upon the ground of mistake, inadvertence, surprise, and excusable neglect, and for fraud and deceit practiced upon the wife, the court amended the decree by awarding her the custody of the children, requiring the husband to pay her $50 per month for their and her support, and allowing her to remain in a dwelling house in the town of Hawthorne belonging to the separate estate of the husband while she remains the custodian. The appeal is from this amended judgment.
The civil practice act provides that the relief granted to the plaintiff, if there be no answer, shall not exceed that which he shall have demanded in his complaint. (Section 3245, Cutting’s Comp. Laws.) The allegations of the complaint in effect are that the husband has been guilty of extreme cruelty; that there is no community property, nor any separate property belonging to the wife; that there are children, and facts showing that the husband is able to maintain them, concluding with a prayer for judgment of divorce, that the husband be awarded the custody of the children, *124and for such other and further relief as may seem just and equitable. Under the provisions of the above statute, the husband not having answered, the wife was entitled to a decree of divorce, and the husband to the custody of the children, in compliance with the express prayer of the complaint. This is the extent of the power that the court could exercise.
The portion of the prayer containing the words "for such other and further relief as may seem just and equitable” cannot warrant a judgment inconsistent with the theory and allegations of the complaint.
The amended judgment is reversed, and cause remanded.
Fitzgerald, J.: I concur.
Talbot, J.,
concurring:
In the prayer of her complaint the plaintiff asked for a dissolution of the marriage, and for costs of suit, that the care and custody of the children be given to the defendant, and for nothing more. Default and decree following this demand were regularly entered on November 11, 1903. This judgment contained no reservation for further consideration or order by the court. Later on the same day the court, without application or notice, entered this minute order: "And it is further ordered, adjudged, and decreed that the plaintiff be and is entitled to the sum of fifty dollars per month from said defendant as long as she has the custody and the care of said children, for the support of her children and herself.” As to this order, I concur in the reasoning and conclusion that it was beyond the prayer of the complaint and the limitation of relief by default under the statute. On January 20,-3904, the plaintiff served .upon defendant and filed a notice of motion and petition to "modify and reform the judgment and decree upon the grounds (1) of mistake, inadvertence, surprise, and excusable neglect, and (2) of fraud and deceit practiced and perpetrated upon plaintiff.” At the hearing affidavits were filed, and both parties and other witnesses testified. The court, by its modified judgment, on February 8th found and decreed that the dwelling house-in Hawthorne *125was the separate property of defendant, that the piano and household furniture were community property, that the plaintiff was a fit and proper person to have the care and control of the children, that she and the children be allowed the exclusive possession of the house and lot so long as she remained their custodian. As both parties were before the court, these provisions in the modified decree are not limited or controlled by the statute confining the relief to the prayer of the complaint when the defendant fails to appear. Section 504 of the Compiled Laws provides that the court may, upon good cause shown, change the custody of the children. The decisions are hot uniform as to whether provisions for alimony can be modified in the absence of authorization by statute without reservation in the decree, but it has generally been held that modification regarding alimony or the. custody of children can only be made upon notice and for good cause shown, arising after the rendition of the judgment, such as a change in the condition, circumstances, character, or conduct of the parents or in the needs of the child. In this connection it is sufficient to say that this is not a proceeding of that kind. The motion to modify the decree is based upon section 68 of our practice act, which directs that upon affidavit showing good cause, and after notice to the adverse party, and upon such terms as may be just, the court may relieve a party from a judgment or order taken against him through his mistake, inadvertence, or excusable neglect. It should be noted that the court may set aside such judgment or order, but the word' "modify” does not appear. She testified that he agreed to allow her to retain the children if she secured a decree giving them to him. Without apparent contradiction the evidence indicated that he intended to oppose her action for divorce by answer and evidence tending to show that she had been guilty of conduct which would entitle him to a dissolution of the marriage, and that to avoid publicity and possible disgrace he consented to have her secure the divorce on condition that he be awarded the custody of the children and allowed to retain the property. He was lulled into making default by a complaint which asked for a dissolution of the *126marriage,, and that he be given the control and care of the children, and which did not demand property or alimony. By her petition the plaintiff did not ask that the whole decree, or ■ that part of it dissolving the marriage, be set. aside, but, retaining that portion which was favorable to her, she secured the order of the court reversing the provisions favorable to him. If this order were permitted to stand, he would be deprived not only of the children, but of his opportunity to defend the action by answer and trial before court and jury. He surrendered this right on condition that he be awarded the custody of the children, of which this order would deprive him. If she was not satisfied with the judgment which by agreement she secured against him by default, by having the children awarded to him, and showed good cause for being relieved from it, if any part of it was to be set aside, in justice to him and under the language of section 68 of the practice act, the motion and order ought not to have covered less than the vacation of the whole judgment, and the restoration to him of the right to defend the suit.
For the reasons indicated, I concur in the judgment reversing the orders mentioned.