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Hilton v. District Court

December 31, 1919

ALBERT B. HILTON, PETITIONER, V. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, AND THOMAS F. MORAN, JUDGE OF SAID COURT, RESPONDENTS.


Platt & Sanford, for Petitioner.

Norcross, Thatcher & Woodburn, for Respondent.

By the Court, Sanders, J.:

Upon the application of Albert B. Hilton, in the form of a verified petition, this court, without requiring notice of the application to be given the adverse party or an order to show cause, issued a writ of certiorari.

The facts in brief are as follows:

Albert B. Hilton commenced an action for an absolute divorce against his wife, Katherine C. Hilton, in the above-named respondent court, upon the grounds of cruelty and desertion. The defendant wife, after denying all the allegations of the complaint, except the averment of the residence of the plaintiff and the marriage relation of the parties, proceeded as follows: “For a further answer and defense and for a cross-complaint defendant alleges,” and then proceeds to charge the plaintiff with specific acts of cruelty, in violation of his marital obligation, and that for a period of more than twelve months prior to the filing to the filing of her cross-complaint

[43 Nev. 128, Page 133]

the plaintiff willfully and without cause and against the will of the defendant deserted the defendant, and that such desertion has ever since so willfully continued and is now continuing. It then goes on to state the plaintiff's ability, his spendthrift habits, and alleges that if the plaintiff is not compelled to make a reasonable settlement upon defendant she will be left without adequate means of support, and particularly means of support in the way in which the defendant has been accustomed, and concludes with the prayer that plaintiff take nothing by reason of his action for divorce; that the defendant have a judgment and decree against plaintiff for her permanent support and maintenance, and other relief. Upon the trial of these issues before the court, and without objection to the pleadings on the part of either of the parties to their legal sufficiency, the court rendered its decree in favor of the defendant wife and against the plaintiff husband, and adjudged and ordered that he pay to the defendant, until the further order of the court, as and for her permanent support and maintenance, the sum of $600 per month. No appeal was taken from this judgment and decree.

1. The petitioner asks by this proceeding that the decree rendered against him be annulled, upon the ground that the court was without jurisdiction of the subject-matter and of the parties, in that the cross-complaint contains no averment of marriage or residence, or that the defendant was a resident within the county in which her cross-action was filed. Counsel for respondent, who are in fact attorneys for defendant, insist that as the defendant was brought within the jurisdiction of the court by the plaintiff's action for divorce, and having gone to trial upon the issues joined without objection to the pleading, he is in no position to complain or to say that the court was without jurisdiction of the subject-matter and of the parties. Ordinarily this is true, but if the averment of marriage and residence are necessary and indispensable facts to be stated in a complaint for support and maintenance, they are

[43 Nev. 128, Page 134]

equally so in a cross-complaint in a divorce action. The rule is elementary that a defendant claiming affirmative relief must plead as fully as if he were plaintiff. Dixon v. Pruett, 42 Nev. 345, 177 Pac. 11; Rose v. Treadway, 4 Nev. 455, 97 Am. Dec. 546.

2. Whatever be the rule, in the absence of a statute, district courts are, by statute in this state, given jurisdiction over the subject-matter and of the parties to an action brought by the wife against her husband for support and maintenance without her applying for a divorce. Stats. 1913, p. 120.

3. There is no doubt that to entitle the plaintiff to recover in such action it is incumbent upon her to make a showing of the marriage relation, her needs, and the ability of her husband, as in a suit for divorce. Nelson on Divorce, sec. 1003.

The cross-complaint shows satisfactorily these facts without reference to the other pleadings in the case. Furthermore, it is obvious from the record that the objection to the pleading on this ground is more technical than real or meritorious, but the point—that the cross-complaint contains no averment of the residence of the parties within the jurisdiction of the court—is one of first impression and is worthy of further discussion.

Coulthurst v. Coulthurst, 58 Cal. 239, is cited by counsel for petitioner in support of the proposition that in this state the cross-complainant in a divorce suit must plead residence. The case is not in point. The defendant's case is not a cross-action for divorce, as in the case cited, but is a cross-action for support and maintenance without divorce.

In the case of Hardy v. Hardy, 97 Cal. 125, 31 Pac. 906, it is held that the right of the wife to maintain an action for support and maintenance is independent of the right to maintain an action for divorce, and, being based upon the obligation of the husband to ...


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