This is аn action for divorce brought by the plaintiff on the grounds of cruel and inhuman treatment. The answer of the defendant sets up recrimination by way of cruel and inhuman treatment on the рart of the plaintiff as a defense to the action. The trial court found for the defendant and dismissed the action. The plaintiff appeals to this court. In the settled statement of the case, however, no demand is made for a trial de novo nor is any question of fact specified on which a review is desired.
In § 28-2732, ND Rev Code 1943 it is provided that “A party desiring tо appeal from a judgment in any such action (tried by the Court) shall cause a statement of the case to be settled within the time and in the manner prescribed by chapter 18 оf this title, and shall specify therein the questions of fact that he desires the supreme court to review, and all questions of fact not so specified, shall be deemed on appeal to have been properly decided by the trial court.”
This requirement is not merely an idle formality in the preparation of an appeal. Its purpose is to limit appeals to questions that appear doubtful and to eliminate all matters unessential to the consideration of such doubtful questions.
In State
ex
rel. McClory v. McGruer,
In Security Improv. Co. et al. v. Cass County,
And on the Petition for Rehearing, “Nor does the statute admit of a construction to the effect that the required specifications can be incorporated either in a notice of appeal or in a judge’s certificate, as was attempted here. Such is not the language of the statute.”
See also Bank of Park River v. Norton,
This is the situation in the case at bar. The notice of appeal did state “that the appеllant hereby demands .trial anew and that all of the issues of every kind and nature be submitted to the supreme court for trial de novo.” That, however, is' not sufficient under the statute and these decisions. No motion was made for striking the statement from the files nor for remanding it for amendment, but in his brief the defendant brings this matter to the attention of the court.
Under these circumstanсes this court has no authority to review the trial court’s findings. Because of the importance of the case, however, and of the fact that the lives of five persons *586 arе affected by tbe decision, the court has read the evidence and has come to the conclusion that the findings of the trial court are fully justified thereby.
That leaves for сonsideration only the judgment roll and errors of the law assigned thereon. The amended complaint sets forth the necessary jurisdictional facts, a prior marriage and divorсe, alleged facts claimed to constitute cruel and inhuman treatment, and the financial condition of the defendant. The prayer is for a decree of divorce, for alimony and support of herself and children, the custody of the children and a division of the property. The amended answer is a general denial, admitting only the jurisdictional faсts, the prior marriage, divorce and remarriage. It then recites alleged facts claimed to show a cause of action for the defendant against the plaintiff on the grounds of cruel and inhuman treatment as recrimination. He asks for a dismissal of the action and the custody of the children. Both parties ask for such further relief as to the court may seem just and proper. The reply is a general denial. A three day hearing was held. The court filed a memorandum opinion and made findings of fact, conclusions of law and оrder for judgment.
In such findings the court finds that the plaintiff was guilty of cruel and inhuman treatment towards the defendant which amounted to a cause of action by the defendant against the plаintiff and barred the plaintiff’s cause of action against the defendant.
Section 14-0510 ND Rev Code 1943 provides that a divorce must be denied upon a showing of recrimination. Sectiоn 14-0515 defines recrimination as “A showing by the defendant of any cause of divorce against the plaintiff in bar of the plaintiff’s cause of divorce.”
In the case of Hoellinger v. Hoellinger, 38 ND 636, 166 NW 519, the divorce was denied because the Court found each party had a cause of action for divorce against the other.
In the case of Roberts v. Roberts, 204 Wis 401,
See also Thorem v. Thorem, 188 Minn 153,
Clearly upon the finding thus made the court was justified in concluding that the divorce should be denied.
The question of the maintenance of the plaintiff was raised, both in the pleadings and in the briefs. Error is claimed by the plaintiff in the failure of the court to grant any relief in that respect. The court made no findings on the financial status of the parties. The court found that the defendant discharged his duties to the plaintiff and to his childrеn “to the best of his ability under the circumstances prevailing in their married life,” and that the plaintiff was guilty of cruel and inhuman treatment toward the defendant. The implication of the cоurt’s findings is that his conduct towards the plaintiff was affected thereby. It appeared on the argument and in the files that the plaintiff and defendant were not living together as man and wife. Thаt the defendant had stopped pláintiff’s credit at the stores. That the family relations were severely strained. It follows that proper family life and proper influences surrounding thе three children of the parties would be very doubtful and that some provision for the proper maintenance of the family might be necessary. Under such circumstances the рlaintiff might be entitled to some relief.
Section 14-0526 ND Rev Code 1943 provides that “Though a judgment of divorce is denied, the court in an action for divorce may provide for the maintenаnce of a wife and her children, or any of them, by the husband.”
Under that section (4401 CL 1913) this court held, in Pulkrabek v. Pulkrabek,
It further appears from the files and records in the case and on argument it was conceded, that subsequent to the entry of judgment herein the plaintiff commenced another action in the same court for separate maintenance, custоdy of the children and division of property. In that action an application for temporary support was made to Judge Miller, Judge Broderick having disqualified himself. That motion wаs granted. Pending the trial thereof the plaintiff was allowed possession of the family home to the exclusion of the defendant. She was also given temporary custody of the children.
In the action at bar no determination was made as to the maintenance of the plaintiff, support and custody of the children or property division. Those matters аre still open and the judgment in the case at bar cannot in any way be considered as res judicata thereon.
Under such circumstances it is not necessary to remand this case for a hearing and determination on those matters. They are all properly pending in the new action. That action is still pending in the District Court of Mercer County.
The judgment of the District Court denying a divorce is affirmed but without prejudice to the plaintiff enforcing her right of action for the maintenance and support of herself and children in the action now pending to which reference has heretofore been made.