70 Neb. 775 | Neb. | 1904
On the 14th day of December, 1900, appellant filed a petition in the district court for Douglas -county against his wife, Mathilda A. Reed, charging her with adultery, and also alleging, as a second cause of action, that she held certain real property in trust for him, the same having-been purchased with his money, and the title thereto having been taken in her name. The petition concluded with a prayer for an injunction restraining the appellee from
Many reasons are urged for a reversal of the judgment, but two of which are entitled to our consideration.
1. It is contended that the court erred in sustaining the demurrer to the last amended petition. This contention can not be sustained. As stated in our former opinion in this case, the rule without exception is, that property rights not groAving out of the marriage relation can nbt be joined Avith an action for a divorce. Reed v. Reed, 65 Neb. 849; 2 Nelson, Divorce, sec. 736; Uhl v. Uhl, 52 Cal. 250. Equitable relief can not be prayed for in a divorce proceeding. 1 Am. & Eng. Ency. Pl. & Pr. 199; Dunbar v. Dunbar, 1 Clev. Law Rep. (Ohio) 148. Indeed, it is believed that no well considered case can be found where such joinder
2. It is strenuously urged by appellant that the court erred in sustaining the defendant’s objection to his evidence offered on the trial of the question of property rights, put in issue by the pleadings. Section 331 of the code provides that “The husband can in no case be a witness against the wife, nor the wife against the husband, except in a criminal proceeding for a crime committed by the one against the other, but they may in all criminal prosecutions be witnesses for each other.” At common law neither ■ husband nor wife could testify one against the other in any case. Section 331 is simply a modification of the common law rule which permits them to testify only in criminal proceedings for a crime one against the other. From the very necessity of the case they are permitted to testify against each other in divorce proceedings, but these are the only modifications of the rule which otherwise remains the same as at common law. Solomon v. Solomon, 3 Neb. (Unof.) 540; Greene v. Greene, 42 Neb. 634; Skinner v. Skinner, 38 Neb. 756; Niland v. Kalish, 37 Neb. 47.
It follows that the court properly excluded this evidence. We have quoted, above, all of the evidence offered and received by the court, and it is clearly insufficient to sustain a decree for the appellant. The only judgment which the court could have rendered, under these circumstances, was one of dismissal.
We therefore recommend that the judgment of the district court be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.