MORRIS v. MORRIS
Morris v. Morris
MORRIS v. MORRIS
MORRIS v. MORRIS
No. 2760
August 1, 1927.
258 P. 232.
I. S. Thompson, for Appellant:
Wm. J. Forman, for Respondent:
OPINION
Coleman, J.:
The parties will be referred to as they were designated in the trial court.
The plaintiff brought suit for a divorce on the ground of extreme cruelty, and from a judgment and decree in her favor the defendant has appealed. There is no appeal from an order denying a motion for a new trial and the evidence is not before us. We can consider only the judgment roll and a bill of exceptions containing a certain motion and the order thereon.
As we interpret the brief of the defendant it presents three points, which are: (1) The complaint does not allege facts sufficient to constitute a cause of action. (2) The court erred in denying the motion of defendant to strike a portion of the reply. (3) The findings are not •supported by the allegations of the complaint.
The defendant answered the complaint without first attacking its sufficiency. In such a situation the complaint should receive the construction more favorable to the plaintiff. Neilsen v. Rebard, 43 Nev. 274, 183 P. 984. However, the complaint unquestionably states a cause of action. It alleges the intermarriage of the parties in 1908; that the plaintiff had been a continuous resident for more than the statutory length of time. It then alleges that the defendant, during the greater part of the married life of the parties, had treated plaintiff in an inhuman and cruel manner, in that in the month of August, 1922, he beat and struck the plaintiff with his fist without reason therefor until her body was black and blue with bruises, and that on several occasions thereafter defendant had attempted and threatened to choke plaintiff and commit physical violence upon her. The complaint then proceeds to detail other acts of cruelty committed subsequent to the date mentioned.
The contention must be rejected. Kapp v. District Court, 31 Nev. 444, 103 P. 235.
If there was any condonation, it does not appear from the complaint; besides, it is an affirmative defense. 9 R. C. L. p. 286, sec. 179.
We do not think the court erred in denying the motion to strike. The matter sought to be stricken reads:
"Alleges that in addition to the wrongful acts committed against plaintiff by defendant as alleged in her complaint, defendant committed the following additional acts of cruelty, which plaintiff specified, as follows: At and about the time of the birth of their youngest child, Hazel, defendant again beat, abused, and mistreated plaintiff. That between the dates of the birth of Barbara and Hazel, the defendant threw iodine upon plaintiff, whereby her leg was burned, causing her great pain and suffering and a large sore to be formed thereby."
The grounds of the motion to strike are that the said matter is irrelevant, immaterial, and redundant, and constitutes no part of a reply.
It is neither. Furthermore, it is perfectly proper to plead such matter in a reply. Johnson v. State Bank of Seneca, 59 Kan. 250, 52 P. 860.
' As to the third contention, we may say that the findings are in perfect accord with the allegations of the complaint and amply support it.
There being no error, the judgment is affirmed.