Blankenship v. Blankenship

• Decision Date: 13 September 1929
• Docket Number: 2838.
• Citation: 280 P. 97,52 Nev. 48
• Parties: BLANKENSHIP v. BLANKENSHIP.
• Court: Nevada Supreme Court

280 P. 97

52 Nev. 48

BLANKENSHIP v. BLANKENSHIP.

No. 2838.

Supreme Court of Nevada

September 13, 1929

Appeal from District Court, Washoe County; Geo. A. Bartlett, Judge.

On petition for rehearing. Petition denied.

For former opinion, see 276 P. 9.

Brown & Belford, of Reno, for appellant.

Cooke & Stoddard and Harwood & Diskin, all of Reno, for respondent.

DUCKER C.J.

The petition for a rehearing is very extensive, and a large part of it is devoted to the presentation of the point that the judgments of the California courts cannot be considered as conclusive or any evidence of the recriminatory defense on the part of the wife, which we held barred the respondent from a decree of divorce. The point is argued with great earnestness and singular dexterity; but we are unable to consider it as a ground for a rehearing, for the reason that it was not advanced in the brief of counsel for respondent on the original hearing or in their oral argument. It is true that counsel for appellant in their opening brief argued that findings and judgments of the California courts pleaded by appellant, admitted in the case and found by the trial court, conclusively proved and established the recriminatory defense set out in appellant's answer; but counsel for respondent took no ground against this contention.

In submitting this case for decision, the sole ground urged by respondent's counsel was that this court ought to adopt the doctrine of comparative rectitude and affirm the judgment. It is true that the trial court did not render judgment on such a theory, but it was nevertheless the only point made by respondent on appeal. This court has repeatedly held that a point raised for the first time on a petition for rehearing will not be considered. Beck v. Thompson, 22 Nev. 419, 41 P. 1; Kirman v. Johnson, 30 Nev 146, 93 P. 500, 96 P. 1057; Gamble v. Hanchett, 35 Nev. 319, 133 P. 936; Nelson v. Smith, 42 Nev. 302 320, 176 P. 261, 178 P. 625; In re Forney's Estate, 43 Nev. 227, 242, 184 P. 206, 186 P. 678, 24 A L. R. 553; Pedroli v. Scott, 47 Nev. 313, 221 P. 241, 224 P. 807, 31 A. L. R. 841. A departure from this well-established rule is not advisable.

We have carefully considered the argument and authorities presented in support of the claim that we were wrong in holding that the recriminatory defense of extreme cruelty pleaded and proved by the wife operated as a bar to the husband being awarded a decree of...