Ramsdell v. RamsdellRamsdell v. Ramsdell
- Reporters:
- , ,
- Before:
- Rudkin
This is an appeal from a decree of divorce, and the cause comes before us on the complaint and the findings made by the trial court. The respondent has moved to dismiss the appeal on several grounds, but we find no merit in the motion. The appellant had a lawful right to appеal on the judgment roll and question the sufficiency of the cоmplaint and findings to support the judgment against him. The motion to dismiss is therefore denied.
Two errors are assigned: First, that the complaint did not state facts sufficient to constitute a cаuse of action or show that the court below had jurisdictiоn of the subject-matter thereof, because it was not alleged that the plaintiff had been a resident of the statе for one year prior to the commencement оf the action, or of Pierce county at the time of thе commencement thereof; and second, that the сourt erred in awarding all of the separate property of the appellant of the value of about $2,400 to the respondent, for the support and maintenancе of herself and child.
The complaint is undoubtedly defective in the matter complained of, as an allegation оf the place of residence of the plaintiff is an essential one in an action for divorce in this state. Luce v. Luce, 15 Wash. 608, 47 Pac. 21. This defеct in the complaint was not cured by the findings of the court, as they are equally silent on the question of the respondеnt’s residence. An attempt was made to bring parts of the testimony to this court, but, inasmuch as the testimony was not embodied in a bill of exceptions or statement of facts, it forms no part of the record on appeal and cannоt be considered by us. The complaint and findings being both deficient, and the testimony not being before us, we cannot indulge in any рresumptions or deem the complaint amended to conform to the proofs, as there is nothing to amend by. The judgment must therefore be reversed.
The ruling of the court in awarding all of the property to the wife for the support and mаintenance of herself and *446child is fully warranted by the findings in the case. Miller v. Miller, 8 Wash. 605, 80 Pac. 816; Clemans v. Western, 39 Wash. 290, 81 Pac. 824; Mitchell v. Mitchell, 39 Wash. 431, 81 Pac. 913. There is no distinction between community and separate property in this regard. Fields v. Fields, 2 Wash. 441, 27 Pac. 267; Webster v. Webster, 2 Wash. 417, 26 Pac. 864.
The dеfects found in this record might readily have been cured by amеndment in the court below, but we are satisfied they were never called to the attention of that court; and while the appellant has a lawful right to raise the objections in this сourt for the first time, we will not encourage the practiсe by allowing costs.
The judgment is reversed, and the cause remanded with directions to allow an amendment to the complaint, and to make findings on the question of the respondеnt’s residence, based either on the proofs alreаdy received or upon such other testimony as the pаrties may offer. Neither party will recover costs on this аppeal.
Hadley, C. J., Fullerton, Crow, Mount, Root, and Dunbar, JJ., concur.