217 P. 239 | Nev. | 1923
By the Court,
This is an appeal taken by the defendant from a decree dismissing an action for divorce. It is set out in the decree that the dismissal is without prejudice to the plaintiff to start a new suit with the same cause of action set forth in his amended complaint in the event a reconciliation cannot be had between the parties. The action was brought on the ground of extreme
The prayer of the answer asks that plaintiff take nothing by his said case and that defendant be dismissed with her costs, and for all other proper orders, and for general relief.
The trial court found that the jurisdictional facts alleged in the complaint were true, but that the acts of cruelty charged therein were not true. It also found the allegations of wilful desertion in a supplemental complaint to be untrue.
As to the issues raised by the answer, the trial court found that the affirmative defense of nonsupport was untrue, except that since September 22, 1922, plaintiff has paid to the defendant on account of the said Sangamon County decree the sum of only $160. No finding was made as to the affirmative defense of wilful desertion. The trial court found that all of the allegations of the affirmative defense setting up the record of the circuit court of Sangamon County, State of Illinois, are true, and that the copies of such record attached to defendant’s answer are full, true, and correct copies; but it is of the opinion, as evidenced by the findings and conclusions of law, that such record is not sufficient to establish a recriminatory defense, or the defense of res adjudicata.
The defendant contends that it is sufficient, and that on the findings she is entitled to a judgment on the
The record of the Illinois court could not operate as res adjudicata of the facts involved for one reason, at least, that the acts relied on as extreme cruelty are alleged to have been done subsequent to the decree of separate maintenance. If the court had rendered judgment for the defendant on the ground that the record of the Illinois court constituted a recriminatory defense, it would have been wholly inconsistent with the finding to the effect that defendant was guiltless of the acts alleged against her in the complaint. A “recriminatory defense” is established when both spouses have been guilty of misconduct which would be good ground for a divorce. In such a situation neither is entitled to a divorce upon the familiar principle that he who comes into a court of equity must come with clean hands. It is a plea in bar and was so pleaded by the defendant, but it cannot operate as a plea in bar unless the defendant was guilty of the misconduct alleged in the complaint, which she denies, and on this issue the court found in her favor. Had she pleaded the facts set out in the affirmative defenses as grounds for divorce and had asked in her answer that a divorce be awarded her on such grounds, a different question would be presented. But they were pleaded as recriminatory defenses, and a dismissal of the action asked for. It is therefore apparent that the trial court, being of the opinion that the plaintiff had failed to prove a sufficient case for the court, could have rendered no other judgment than it did. The defendant was entitled to a non-suit or dismissal upon motion under the provisions of subdivision 5 of section 295, civil practice act (Rev. Laws, 5237).
The record is silent as to whether such motion was made by the defendant, but counsel for the parties in their briefs state that it was made by the defendant, her counsel asserting that it was denied, and counsel
The judgment should be affirmed, and it is so ordered.
