Orr v. Orr , 1 Neb. 359 ( 1871 )

LIke, J.

It is unnecessary here to notice but one of the several questions argued at the bar.

The original petition was filed on the 18th of October, 1866, but issue had not been joined thereon, when on the 31st day of October, 1867, the complainant filed her supplemental petition, alleging new and material facts, and in addition to her former prayer, praying alimony in the sum of fifty thousand dollars.

On the 22d of November following, without the assent of the defendant, and before he had plead to the supplemental bill, the case was tried and a decree entered in favor of the complainant.

By the law regulating the practice in such cases, the defendant had until the fifth Monday after the service of notice upon him of the filing of the supplemental petition, to plead thereto. This right he was denied. Sec. 741, Code.

The record shows that on the 2d of December following, and within the time fixed by the statute therefor, the defendant did file exceptions to the supplemental petition, but they could not be heard, nor could they be of the least avail, were they ever so well taken, for the case had already passed to final judgment. The decree of the court below must be vacated and the cause remanded for further proceedings.

Reversed and remanded.