Gardner v. Gardner , 23 Nev. 207 ( 1896 )

The facts sufficiently appear in the opinion. In this action the trial court granted a decree in favor of the plaintiff and against the defendant, dissolving the bonds of matrimony then existing between them on the ground of extreme cruelty on the part of the defendant towards the plaintiff, and awarded to her the care and custody of their minor child. From this decree and the order of the court denying his motion for new trial the defendant appeals.

The appeal is prosecuted on the alleged grounds: (1) Errors in law occurring at the trial and excepted to by the defendant. (2) Insufficiency of the evidence to support the decision of the court and that the same is against law.

The complaint is based on two of the statutory grounds for divorce: Neglect to provide, etc., and extreme cruelty, but the causes of action are not separately stated, or rather they are embraced in one count. The defendant demurred to the complaint upon the alleged grounds of its ambiguity, uncertainty, etc., and the insufficiency of the facts stated to constitute a cause of action. The court sustained the demurrer with respect to some of the specified grounds of objection contained therein and overruled it in all other respects. The complaint was amended to cure the defects with respect to which the demurrer had been sustained, the defendant answered, and the case went to trial on issues of fact.

The overruling of the demurrer is assigned as error, and the alleged error is argued by appellant's counsel. It is insisted that there are several causes of action united and "jumbled together," and do not conform to the closing paragraph of section 3086 of the General Statutes "in that they are not separately stated." Whether or not these objections can be taken by demurrer we do not pass upon. If the demurrer was proper, the defendant waived the objections by answering. All objections to a complaint are waived by answering and raising issues of fact, except: (1) "That the court has no jurisdiction of the person of the defendant or the subject of the action." (2) "That the complaint does not state facts sufficient to constitute a cause of action." (Lonkey v. Wells, 16 Nev. 271; Hammersmith v. Avery,18 Nev. 225; Bliss on Code Pleadings, sec. 417.)

The allegations of jurisdiction and marriage being fully and sufficiently made by the amendments, the only question to be considered concerning the complaint is: Are the facts stated therein sufficient to constitute a cause of action for divorce on the ground of extreme cruelty? By the complaint the plaintiff alleges: "That since said marriage the defendant has treated her in a cruel and inhuman manner, and in particular as follows:" [After alleging several threats of the defendant to take the life of the plaintiff, with the time, place and circumstances, and other misconduct on his part, it is further alleged:] "That on or about the 3d day of March, A. D. 1894, at Wellington, Lyon county, Nevada, the said defendant falsely charged that plaintiff was guilty of improper conduct as a wife in keeping company and going with other men without his consent, and from that date until the 17th of April, A. D. 1894, has almost daily so charged her, which, in conjunction with the acts of cruelty hereinbefore set forth, his frequent drunkenness and his habit of gambling as aforesaid, caused her great bodily pain and mental anguish, which seriously impaired her health, destroyed her happiness and rendered her life so miserable and unendurable that she was forced to cease cohabiting and living with defendant on said 17th day of April, A. D. 1894."

We are of opinion that the facts stated are sufficient to constitute a cause of action, and, if proven, entitle the plaintiff to the decree granted.

Certain testimony concerning the conduct of the defendant towards the plaintiff was offered and objected to by the defendant's counsel, on the ground that the alleged conduct occurred after the action was brought. The objection was overruled and the evidence admitted, to which ruling the counsel excepted. The admission of this evidence is assigned as error, and noticed in argument by counsel for appellant. The record shows that the findings of fact on which the decree of divorce was granted were based on the evidence of the defendant's conduct prior to the filing of the complaint, and that all the facts found antedate the commencement of the action.

"The admission of incompetent evidence by the trial court is not reversible error on appeal where it appears that the verdict or finding was not based upon it." (McDonald v.Jacobs, 85 Ala. 64; People v. Collins, 75 Cal. 411;Markell v. Mathews, 3 Colo. App. 49; 2 Ency. Pleadings and Practice, 549, et seq.)

There are numerous decisions of this court running through many of the reports, from Mitchell v. Bromberger,2 Nev. 345, to State v. Lewis, 20 Nev. 333, which hold to the effect that the judgment of an inferior court will not be set aside on appeal for errors committed on the trial which it appears could not have prejudiced the appellant.

While the acts or conduct of a defendant after suit brought cannot be made the ground for divorce, it seems to be well settled that specific acts of cruelty occurring during the period in which it is alleged the misconduct took place, although not specifically alleged, may be received in evidence as explanatory of those averred and as giving weight to them and color to the acts alleged and proved. (2 Bishop on Marriage, Divorce and Separation, secs. 1442, 1443, and notes.) And Bishop, in same volume, sec. 1451, says: "One cannot see why they may not receive color as well from what occurred after the suit was brought as before."

In the case of Doughaday v. Crowell, 3 Stockton (N. J.) Rep. 210, the court said: "It may be said that the court must look at the case as the bill presents it, and must confine itself to matters which occurred previous to the commencement of the suit. But the court may look at the conduct of the husband towards the wife since the commencement of the suit for the purpose of giving character to the acts which are relied upon as grounds for the divorce."

We are of opinion that the evidence is not necessarily to be limited to the particular facts charged, but that evidence of other facts, whether before or after suit brought, which serves to give character to the acts of cruelty alleged and proved, is admissible.

Several other alleged errors are assigned which will not be considered, as they have not been noticed in argument.

"If appellant presents no argument or authorities in support of an alleged error in the court below, this court will not consider the assignment, unless the error is so unmistakable that it reveals itself by a casual inspection of the record." (Allison v. Hagen, 12 Nev. 38.) And alleged errors, argued but not embraced in the assignment, will not be considered. (Sherman v. Shaw, 9 Nev. 148; Boyington v. Longley,19 Nev. 69.)

The Evidence: The evidence is conflicting, and while it does not make out a very strong case against the defendant, it tends to prove the alleged acts of cruelty as found by the court. Bishop, in commenting upon the degree of cruelty or what extent of harm must be apprehended, says: "There is no possibility of measuring the depth of woe or danger required, except by the understandings of the men who occupy the bench and the jury box, enlightened and strengthened by what has been heretofore deemed or adjudged."

Taking the testimony altogether, as to the specific acts of the defendant, and his general conduct embraced within the period named in the complaint and as to the effect they had on the plaintiff, we do not think we would be justified in disturbing the findings of the court.

The judgment and order denying a new trial are affirmed.