MORROW VS. MORROW (DIVORCE)

Key holdings

Practitioner summary

Appeal by the defaulted defendant wife from an order striking her answer, from the divorce decree, and from an order striking her motion to vacate; the plaintiff husband died after the appeal, and a court-appointed amicus curiae moved to dismiss. Held: (1) an amicus curiae is competent to move to dismiss an appeal that has become moot, as one may move to dismiss a collusive or fictitious action (Haley v. Eureka County Bank, 21 Nev. 127, 26 P. 64; Lemp v. Lemp, 62 Nev. 91, 141 P.2d 212), and may introduce extrinsic evidence (a death certificate and the surviving widow's affidavit) to show that no actual controversy exists. (2) On the husband's death the divorce suit abated because the cause of action did not survive (Foy v. Smith's Estate, 58 Nev. 371); with no community property in Nevada and only a purely personal-status question presented, the case became moot. Appeal dismissed.

In plain language

A husband obtained a divorce after the trial court struck the wife's answer and entered her default. The court struck the answer because the attorney who signed it, W. Coburn Cook, was not a Nevada resident, no resident attorney had been associated in the case, and the wife had not appeared for herself. She appealed. The husband then died, and a court-appointed lawyer (an amicus curiae) moved to dismiss the appeal as moot. The Nevada Supreme Court dismissed the appeal. An amicus curiae may properly move to dismiss an appeal that has become moot, just as one may move to dismiss a collusive or fictitious case, and may introduce evidence - here a death certificate and the widow's affidavit - to show that no real controversy remains. On the husband's death the divorce suit abated because the cause of action did not survive; there was no community property in Nevada, and the matter concerned a purely personal status. The appeal was therefore dismissed as moot.