Canavan v. Canavan

• Decision Date: 08 March 1913
• Parties: CANAVANv.CANAVAN ET AL.
• Court: New Mexico Supreme Court

17 N.M. 503

131 P. 493

CANAVAN

v.CANAVAN ET AL.

Supreme Court of New Mexico.

March 8, 1913.

Syllabus by the Court.

Where a material, even jurisdictional, fact, omitted from the complaint, is as fully litigated, without objection, as if said fact had been put in issue by the pleadings, it is the duty of the trial court and of this court on appeal to amend the complaint in aid of the judgment so as to allege the omitted fact.

A judgment in a contempt proceeding, originating subsequent to the final decree, is not reviewable upon appeal from such final decree.

Additional Syllabus by Editorial Staff.

An objection that the complaint in a divorce suit fails to state that the plaintiff has resided in the state the required length of time presents fundamental error and must be reviewed, though presented for the first time in appellant's brief.

Appeal from District Court, McKinley County; H. W. Raynolds, Judge.

Action by Kate Canavan against Stephen Canavan and others. From decree for plaintiff, defendants appeal. Affirmed.

Pleadings may be amended to conform to the evidence introduced without objection.

E. W. Dobson, of Albuquerque, Charles Spiess, of East Las Vegas, and Mann & Venable, of Albuquerque, for appellants.

A. T. Hannett, of Gallup, and Vigil & Jamison, of Albuquerque, for appellee.

PARKER, J.

This is an appeal from a final decree for divorce and awarding judgment to the appellee for a sum of money as her just share of the community estate of the parties, and ordering execution. Appellant does not complain of the justness of the decree except to say that it was not justified by the evidence. A reading of the record shows no merit in the suggestion.

[1] 1. Appellant, however, questions the decree on the ground of want of jurisdiction of the subject-matter. The proposition is founded on the fact that the complaint fails to allege residence of the appellee, plaintiff below, for one year next prior to the filing of the complaint, which residence is required by the Act of Congress of May 25, 1896, c. 241, 29 Stat. 136, 2 Fed. Stat. Ann. 838, and section 1432, C. L. N. M. 1897. It appears from the evidence in the case that the parties, ever since their marriage, with one exception for a short time, have lived in Gallup, in the county of McKinley, in this state, and that appellee had lived continuously in the same house in Gallup where she lived, when she testified in the case, for nine years prior to the time she testified. Appellant expressly admits in his testimony the required residence of the wife. No objection to the complaint was interposed in the court below on this ground, and no motion in arrest of the judgment was interposed.

We have, then, a case where the complaint in a divorce case is defective in failing to allege a material fact, which in truth exists and is undisputed, but where the defendant fails to object to the same in the court below and presents the proposition here for the first time. Under such circumstances, is the objection available? It may be stated preliminarily that such an objection does not meet with favor in any appellate court. To consider the same antagonizes the rule requiring all questions to be submitted to the trial court and to be decided by it before they will be considered on appeal. And, speaking broadly, it presents a case where a litigant has litigated with his antagonist every fact material or relevant to the cause of action, and, having failed, he now seeks by the mere forms of law to defeat his antagonist and deprive her of the result of the litigation.

[3] But the objection is of such nature that this court must notice it, notwithstanding there is no assignment of error presenting it, and it is mentioned for the first time in the briefs of counsel. This is so for the reason that the fact omitted from the pleadings, viz., residence of plaintiff in the state the required length of time prior to bringing her action is a fundamental fact which lies at the foundation of the right to institute and maintain the action, and is, in a sense at least, jurisdictional. The fact of residence is not strictly a part of the cause of action between the parties for divorce. It bears no relation to the fact of marriage or to the facts authorizing its dissolution. It is an arbitrary provision of law, founded upon wise considerations of public policy, which requires residence of the plaintiff for a given time before right of action arises. But whether classed as a part of the cause of action, or a fact giving rise to the right of action, it is equally important, and the question must be considered.

It is to be admitted, without argument, that the objection that a complaint fails to state facts sufficient to constitute a cause of action may be successfully interposed at any stage of the proceedings, and may be so interposed for the first time in an appellate court. 2 Cyc. 680; Nichols v. Board of Co. Com., 13 Wyo. 1, 76 Pac. 681, 3 Ann. Cas. 543, and note. This is necessarily so because parties, while they may submit their persons to the jurisdiction of the court, can by no act of theirs confer upon the court jurisdiction of the subject-matter. Ordinarily the subject-matter of a cause of action is determined exclusively by the complaint, which enumerates and states all of its different elements. If a material element is omitted, no legal cause of action is stated, and no jurisdiction to render a judgment arises. A direct attack upon the judgment, therefore, must ordinarily be successful. But the omitted element of the cause of action may be brought into the record otherwise than by the complaint. In the case at bar, the omitted element, viz., the required residence of the plaintiff, was brought into the record by the proofs in the case, which are undisputed, and the fact is admitted by the defendant himself. The proofs are before us as a part of the record, from which we have a right to find, and we do find, that the required residence prior to the institution of the action existed. The vicious consequences of the general doctrine just stated have led to the formulation of various rules, both statutory and of decision, calculated to curtail its effect. Thus the doctrine of “express aider” (i. e., where the omitted fact is supplied by the pleading of the opposite party) was known to the common law. 1 Chitty's Pldgs. 671. So the doctrine of aider by verdict to the effect that a fact, though of substance, if it be such that, without proving it, plaintiff could not have a verdict, will be supplied by the verdict, although not alleged. Tidd, Pr. 919. “So when the omitted fact is admitted in the evidence on an argument by the opposing party, he cannot complain of the defect in the appellate court.” Bang v. McAvoy, 52 App. Div. 501, 65 N. Y. Supp. 467; Town of Schaghticoke v. Fitchburg R. Co., 53 App. Div. 16, 65 N. Y. Supp. 498.

In all of the Codes of Civil Procedure, ample provisions for amendment of pleadings are made for the purpose of avoiding the consequences of the doctrine above mentioned, and ours is quite similar in language and scope with one exception to be noted. The pertinent provisions of our Code are as follows:

Section 2685, C. L. 1897, subsec. 39: “When any of the matters enumerated in subsection thirty-five of this act, do not appear upon the face of the complaint, the objection may be taken by answer. If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court over the subject-matter of the action, and excepting the objection that the complaint does not state facts sufficient to constitute a cause of action.”

Subsection 82: “The court may, at any time before final judgment in furtherance of justice, and on such terms as may be proper, amend any record, pleading, process, entry, return, or other proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations, material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.”

Subsection 85: “The court shall, in every state of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.”

Subsection 86: “After the final judgment rendered in any cause, the court may, in furtherance of justice, and on such terms as may be just, amend in affirmance of such judgments, any record, pleading, process, entry, return or other proceedings in such cause, by adding or striking out the name of a party or a mistake in any other respect or by rectifying defects or imperfections in matters of form; and such judgment shall not be reversed or annulled therefor.”

Subsection 94: “All omissions, imperfections, defects and variances, not being against the right and justice of the matter of the action, and not altering the issue between the parties on the trial, shall be supplied and amended by the court where the judgment shall be given, or by the court into which such judgment shall be removed by writ of error or appeal.”

Subsection 39, above quoted, expressly excepts the defect complained of here, and has no application to this discussion except that it shows that the objection is available at any stage of the proceedings. Subsection 82 refers to amendment prior to judgment. Subsection 85 lays down the general principle that defects which do not affect the substantial rights of the parties shall be disregarded. Subsection 86 refers to amendment as to matters of form, which may be made after judgment. Subsection 94, however, introduces a new feature into the law, and, so far as we are advised, this section is unique. The imperative...