Grytbak v. Grytbak , 216 Ark. 674 ( 1950 )

ON REHEARING

Appellee insists that, by modifying the decree to allow alimony to appellant, we have arbitrarily granted her relief on an issue that was not before the trial court. Cases are cited which state the familiar rule that issues not presented in the trial court cannot be raised for the first time on appeal. In her complaint appellant alleged that she was without funds to support herself and pay the costs of litigation and prayed for temporary relief out of funds belonging to appellee and for all other equitable relief. Appellee denied that she was entitled to anything. With the issues thus joined, much of the testimony was directed to appellee’s'financial condition and ability to pay. We have held that the statement of facts in a complaint or cross-complaint, and not the prayer for relief, constitutes the cause of action, and that the court may grant whatever relief the facts pleaded and proved may warrant, in the absence of surprise to the complaining party. Albersen v. Klanke, 177 Ark. 288, 6 S. W. 2d 292. We conclude that the facts pleaded and proved warrant the allowance of alimony, and that appellee is not in position to plead surprise.