MORRIS VS. MORRIS (DIVORCE)

Key holdings

Practitioner summary

Appeal from a decree of divorce for extreme cruelty in the wife's favor, taken from the judgment alone; with no appeal from the order denying a new trial, review was confined to the judgment roll and a bill of exceptions containing a motion to strike and the order thereon. Coleman, J., held: (1) the complaint - alleging a 1908 intermarriage, statutory residence, an August 1922 beating and subsequent attempts and threats to choke the plaintiff - unquestionably stated a cause of action, and, the defendant having answered without attacking its sufficiency, it received the construction more favorable to the plaintiff (Neilsen v. Rebard, 43 Nev. 274, 183 P. 984; Kapp v. District Court, 31 Nev. 444, 103 P. 235); condonation not appearing on the face of the complaint is an affirmative defense (9 R.C.L. 286, sec. 179); (2) the motion to strike matter from the reply (additional specified acts of cruelty, including the iodine incident) was properly denied - pleading such matter in a reply is proper (Johnson v. State Bank of Seneca, 59 Kan. 250, 52 P. 860); and (3) the findings accord with and support the complaint. Affirmed.

In plain language

A wife sued for divorce on the ground of extreme cruelty, alleging among other things that in August 1922 her husband beat her with his fist until her body was black and blue and that he later attempted and threatened to choke her. She won a divorce, and the husband appealed from the judgment only - he did not appeal the denial of his new-trial motion, so the evidence itself was not before the Supreme Court, which could review only the judgment roll and a bill of exceptions covering one motion. The court rejected all three of the husband's arguments. First, the complaint plainly stated a cause of action for extreme cruelty, and because the husband answered without first attacking the complaint, it had to be read in the light more favorable to the wife; any claimed condonation did not appear on the face of the complaint and is an affirmative defense in any event. Second, the trial court properly refused to strike from the wife's reply her allegations of additional acts of cruelty (including that the husband threw iodine on her, burning her leg) - such matter is neither irrelevant nor improper in a reply. Third, the findings were in accord with the complaint and amply supported it. The judgment was affirmed.