DocketNumber: 3408
Citation Numbers: 147 P.2d 495, 62 Nev. 232, 1944 Nev. LEXIS 7
Judges: Orr
Filed Date: 3/20/1944
Status: Precedential
Modified Date: 10/19/2024
In her appeal appellant has presented two questions for determination. First, she contends that the provisions relative to the real property awards contained in the decree are not conformable to the case made by the complaint, in this: The trial court was without jurisdiction to adjudicate property rights in realty situate in a foreign state, and, further, that no settlement of the property rights could properly be made under the prayer for general relief which the complaint contained.
1-3. In considering the question of whether or not the relief granted was conformable to the case made, we must look to the issues joined by the pleadings, and not to the allegations of the complaint alone. The complaint alleges, in paragraph IV: "that there is community property belonging to the plaintiff and defendant situated in Nevada and California, the exact value of which is unknown." The answer admits the allegations of said paragraph IV of the complaint, and in the cross-complaint filed by appellant it is prayed that certain property situate in California be assigned and *Page 235 decreed to her. The reply filed by respondent also prays that the community property be divided between the parties.
Considering the issues made by the complaint, answer and reply, we are convinced that the provisions of the decree dividing the community property do conform to the case made, and under the prayer for general relief the court was empowered to pass upon the property rights.
"The relief under the general prayer must be such as follows legitimately and logically from the pleadings and the proof; and it must not be of such character as to take the defendant by surprise. If the bill prays for general relief only, the plaintiff will be entitled to such relief as is conformable to the case established by him." 10 R.C.L. p. 557.
4, 5. The courts of this state are authorized by section 9463, N.C.L. 1929, as amended by Statutes 1943, p. 117, to "make such disposition of the community property of the parties as shall appear just and equitable." Under section 9463, N.C.L. 1929, the trial court has authority to inquire into the existence of property of either spouse and to make an investigation thereof with the view of making such adjustment as "will attain right and justice between the parties under all the circumstances which may attend the particular case." Walker v. Walker,
"A court of equity having authority to act upon the person may indirectly act upon real estate in another state, through the instrumentality of this authority over the person. Whatever it may do through the party it may do to give effect to its decree respecting property, * * *." Fall v. Eastin,
See also: 17 Am. Jur. p. 369, sec. 449; 27 C.J.S., Divorce, p. 1287, sec. 330; 51 A.L.R. p. 1085.
The appellant having submitted to the jurisdiction of the trial court, the decree adjudicating the property rights falls within the extraterritorial effect of a judgment and decree when operating in personam.
We now consider the contention of appellant that the allegations of the complaint are insufficient to permit the proving of extreme cruelty and the granting of a decree of divorce upon that ground. The complaint alleges:
"That since the marriage, the defendant has treated the plaintiff with extreme cruelty.
"That all of the acts of extreme cruelty on the part of the defendant were without cause or provocation and caused said plaintiff intense mental pain, anguish and suffering, and seriously interfered with and impaired his health." *Page 237 8. The allegations of the complaint are amply sufficient to meet the provisions of section 9467.04, 1941 Supplement, Nevada Compiled Laws 1929, wherein it is provided: "In actions for divorce the complaint of the plaintiff * * * may state the cause or causes for divorce upon which the party or parties rely, in the words of the statute * * *."
Section 9460, N.C.L. 1929, provides that a divorce from the bonds of matrimony may be obtained by complaint under oath "for the following causes: * * * Sixth, extreme cruelty in either party." The allegation of the complaint "that since the marriage, the defendant has treated the plaintiff with extreme cruelty" impresses us as being as nearly an allegation in the language of the statute as could be devised to convey the required meaning. The further allegation of the complaint alleging the result of the cruelty practiced is an amplification of the language of the statute, and to our minds adds to, rather than detracts from, the sufficiency of the allegations to state a cause of action.
9, 10. Appellant cites the case of Nielsen v. Nielsen,
The permission given by section 9467.04 N.C.L. 1941 Supplement, to plead the cause of action in the language of the statute works no hardship, for the reason that provision is made in the same statute for a bill of particulars to be furnished upon demand, "stating in detail the facts, dates, times and occasions upon which the plaintiff or the defendant relies for cause of action."
The judgment and order appealed from are affirmed. *Page 239
Etheridge v. Etheridge , 120 Md. 11 ( 1913 )
Keyes v. Nevada Gas Co., Limited , 55 Nev. 431 ( 1934 )
Seibel v. Seibel , 30 Ohio App. 198 ( 1927 )
Sugarman Co. v. Morse Bros. , 50 Nev. 191 ( 1927 )
Nielsen v. Nielsen , 55 Nev. 425 ( 1934 )
First National Bank v. Abel , 56 Nev. 489 ( 1936 )
Fall v. Eastin , 30 S. Ct. 3 ( 1909 )
McCullough v. McCullough , 120 Tex. 209 ( 1931 )