65 Neb. 849 | Neb. | 1902
John Reed, the plaintiff below, filed his petition praying a divorce from the defendant. He also alleged that certain real and personal property held by the plaintiff in her own name was purchased with his money, and he prayed a decree that the defendant be adjudged a trustee for plaintiff holding said property in trust for him. The defendant answered denying the allegations of the petition, and also asked a decree of divorce against the plaintiff. The court, by its decree, denied a divorce to either party, and refused to make any finding as to the rights of property claimed by the plaintiff, and dismissed that part of his petition without prejudice to the right of either party to adjudicate in any other action the property rights involved in this case as set forth in the pleadings. The plaintiff filed a motion for a new trial, which was overruled by the court, and he has brought the case to this court for review.
In the record filed in this court the parties are denominated “appellant” and “appellee,” and the attorneys have so designated them in the briefs filed. No regular petition in error has been filed in this court, but a paper denominated “Special reasons claimed by the appellant” has been filed, in which eighteen alleged errors of the trial court are pointed out and relied upon for a reversal of the decree. Under these circumstances we think that we are required to treat the case as one brought here on error instead of on appeal.
A large amount of testimony was taken, the bill of exceptions consisting of nearly 700 pages of typewritten testimony. The plaintiff charged his wife with adultery. Upon this question there is a sharp conflict in the evidence — a conflict that can not be the result of mistake or misunderstanding. That some of the witnesses deliberately prejured themselves can not be doubted. In this condition of the case we can not interfere with the finding of the court. The rule that a judgment of the district
The refusal of the court to make any finding upon the question of the right to property claimed by the plaintiff presents a different question. The rule, as we find it, without exception, is that property rights not growing out of the marriage relation can not be joined with an action for divorce. “No action can be joined with the action for divorce when the relief sought has no congruity with divorce and the settlements arising out of a dissolution of the marriage. If the plaintiff can obtain the same relief in an independent action, or if the property in controversy will be secure while the divorce suit is pending, the issues should not be tried in a divorce suit but in a separate action, where a single issue may be tried by the proper parties. Thus, an action to quiet title can not be joined with an action to annul the marriage. An action to recover personal property and to settle an estate; or to adjust accounts with a mortgagee who is in possession of the community property; or to enforce a deed; or to set aside a deed to the wife’s land, should not be joined with a suit for divorce, as in any of these cases the same relief could be obtained in a separate
For the reasons above given we recommend that the case be reversed and remanded to the district court for further proceedings not inconsistent wdth this opinion.
Reversed and remanded.