WHISE VS. WHISE (DIVORCE)

Key holdings

Practitioner summary

Appeal by the plaintiff husband from a Second Judicial District Court order of April 1, 1912 permitting the defendant, long after the extended time for a notice of intention to move for a new trial had expired, to amend her timely August 5, 1911 notice (insufficiency of evidence; decision against law; errors of law) by adding newly discovered evidence as a fourth ground. The proffered evidence was that plaintiff, after the June 20, 1911 decree of divorce for extreme cruelty, returned to Chicago and resumed his profession, assertedly proving his trial testimony of intended permanent Reno residence false. McCarran, J., applying sec. 3163 of Cutting's Compiled Laws (relief from a judgment, order, or proceeding taken through mistake, inadvertence, surprise, or excusable neglect) as construed liberally in Sherman v. Southern Pacific, 31 Nev. 290, held the showing disclosed no surprise, inadvertence, or excusable neglect and demonstrated want of diligence. Further, post-judgment removal from the state is not newly discovered evidence affecting the material issues: residence is a matter of intention, both parties had submitted to the jurisdiction, and at the end of the controversy either party could go where he or she saw fit. Evidence useful only to impeach an adversary's testimony, and then only by inference, will not warrant a new trial unless decisive in character and rendering a different result reasonably certain. Permitting the amendment on this showing was an abuse of discretion. Order reversed.

In plain language

Melchoir Whise sued Esther Whise for divorce in Washoe County and won: the court granted him a divorce for extreme cruelty on June 20, 1911. Within the time the court allowed, the wife filed a notice of intention to move for a new trial on three grounds. Months later, after the deadline had passed, she asked leave to amend that notice to add a fourth ground - newly discovered evidence - claiming that Whise had moved back to Chicago and resumed the practice of his profession right after the decree, which she said proved his trial testimony about intending to live permanently in Reno was false. On April 1, 1912 the trial court let her amend, and the husband appealed that order. The Nevada Supreme Court reversed. The statute allowing relief from missed deadlines requires a showing of mistake, inadvertence, surprise, or excusable neglect, plus diligence - and the wife showed none of those. More fundamentally, the 'new evidence' was worthless for a new trial: a party's move to another state after the litigation ends does not retroactively disprove residence, since residence is a matter of intention and either party may go where they please once the case is over. At most the evidence would impeach Whise's testimony by inference, and newly discovered evidence that serves only to impeach will not support a new trial. Allowing the amendment was an abuse of discretion.