Lead Opinion
By the Court,
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,
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.
Concurrence Opinion
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
For the reasons indicated, I concur in the judgment reversing the orders mentioned.