Clark v. Clark

• Decision Date: 05 May 1920
• Docket Number: 2424.
• Citation: 189 P. 676,44 Nev. 44
• Parties: CLARK v. CLARK.
• Court: Nevada Supreme Court

189 P. 676

44 Nev. 44

CLARK v. CLARK.

No. 2424.

Supreme Court of Nevada

May 5, 1920

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Action for divorce by Ph be Boswell Clark against Allen L. Clark. Decree for plaintiff, and defendant appeals. Affirmed.

Hoyt Norcross, Thatcher, Woodburn & Henley and John D. Hoyt, all of Reno, for appellant.

Frame Morgan & Raffetto, of Reno, for respondent.

SANDERS J.

This is an action for divorce on the ground of adultery, brought by Ph be Boswell Clark against Allen L. Clark in the district court of Washoe county, commenced on the 26th day of December, 1917, and ending in a decree in her favor on the 30th day of September, 1919. The cause was tried before the court without a jury. The defendant appeals to this court from an order denying his motion for a new trial and from the judgment.

The facts are stated in the pleadings. The complainant alleges that plaintiff and defendant intermarried on or about the 6th day of August, 1892, at Winnemucca, Nev., and that said marriage has never been annulled and the bonds of matrimony existing between plaintiff and defendant have never been dissolved, and that they are husband and wife. She alleges that since said marriage, on or about February 16, 1910, the defendant entered into a contract of marriage and had a marriage ceremony performed between himself and one Emily James, and ever since has lived openly with said Emily James as his wife, and during all of said time held her out to be his wife and lived openly and notoriously in adultery with her and been guilty of a continual and systematic course of adultery with said Emily James, all of which remains uncondoned and unforgiven.

The defendant by his answer denies that plaintiff and defendant on or about the 6th day of August, 1892, at said place, or at any other time or place, or at all, intermarried, and he denies that plaintiff and defendant then, or at any other time, became and now are husband and wife, but, on the contrary, on the 6th day of August, 1892, and for a long time prior and subsequent thereto, he had a wife living, to wit Mary E. Clark. He admits that he intermarried with said Emily James on the 16th day of February, 1910, admits that he openly lived with her as his wife, and alleges that said Emily James is his lawful wife.

For reply to the bar pleaded in defense of her action plaintiff alleges that on the 10th day of April, 1893, the defendant was divorced from said Mary E. Clark by the superior court of Sacramento county, Cal., and that the impediment to the marriage of the plaintiff and defendant was at that time removed, and there has been no impediment to their marriage since said date. She further alleges that at the time of the intermarriage between plaintiff and the defendant plaintiff had no knowledge of Mary E. Clark, and no knowledge that defendant had been, or claimed to have been married before his marriage with plaintiff, and plaintiff never did have knowledge of such fact until a time subsequent to the filing of the complaint in the present action. She further alleges that from the time of her intermarriage with the defendant, and also from and after the 10th day of April, 1893, until a period subsequent to February 16, 1910, plaintiff and defendant lived and cohabited together as husband and wife, and defendant never during all of said time informed plaintiff that she was not his lawful wife and that he had a former wife, and she alleges that by reason of the cohabitation between plaintiff and defendant subsequent to said decree of divorce between defendant and said Mary E. Clark, as aforesaid, the plaintiff became, and ever since has been, and now is the common-law wife of said defendant, and as such entitled to all the privileges and benefits of matrimony, and in truth and in fact the wife, and the only wife, of said defendant, and that plaintiff and defendant are husband and wife.

The trial court upon the conclusion of the case took time to consider of its decision, and wrote a lengthy opinion reviewing the testimony and filed special finding of facts. One of those findings, and the one which is the foundation of plaintiff's right to a divorce, is in substance as follows:

That the parties intermarried at Winnemucca, Nev., on the 6th day of August, 1892; that at the time of the marriage the defendant had a wife living in the state of California, who had commenced in that state a proceeding against the defendant on the 20th day of July, 1892, and on the 10th day of April, 1893, a minute order was entered in that proceeding granting to the defendant's then wife, Mary E. Clark, a divorce, and on March 6, 1906, a decree of divorce absolute was signed and entered; that at the time of the marriage between plaintiff and defendant the plaintiff had no knowledge of any other woman claiming to be the wife of defendant; that said marriage was entered into in good faith, and that during all the times from said date of marriage and up to about the year 1910 the plaintiff and defendant lived and cohabited as husband and wife and held themselves out to the world as such husband and wife during all of said times; that during said period of time a child was born to the marriage, which died; that the parties lived together as husband and wife and held themselves out to the world as such in the states of California and Nevada after the marriage of Mary E. Clark and defendant had been annulled; that a marriage contract was entered into between the plaintiff and the defendant after the impediment to the defendant's marriage was removed by the divorce which was granted to defendant's former wife in California, and that said parties continued to live together as husband and wife pursuant to said agreement until the year 1910, when defendant left the plaintiff in the state of California, came to Reno, Nev., and there on the 16th day of February, 1910, entered into a supposed marriage contract with and was wrongfully and unlawfully married to one Emily James; that plaintiff and defendant ever since said marriage have been, and now are, husband and wife.

The objections interposed to this finding furnish the grounds for this appeal. While numerous errors have been assigned, they have been condensed and are discussed under three leading propositions: First, that the pleadings do not state a cause of action against the defendant; second, there is a material variance between the pleadings and proof (and the decision of the court) that entitled defendant to require plaintiff to amend her pleadings; third, there is no evidence whatever of any contract of marriage between plaintiff and the defendant.

For convenience we will consider the assignments in their order.

First the pleadings do not state a cause of action. If we clearly interpret the somewhat involved argument, it is the contention of the learned counsel for appellant that the pleadings do not state a cause of action, in that the marriage relation is not alleged or shown to exist. From this premise it is argued that, since the plaintiff alleges in her pleading that at the time of her marriage to the defendant she had no knowledge of Mary E. Clark, the defendant's former wife, and no knowledge that the defendant had or claimed to have had a former wife living until after she had commenced her action, it would be folly to assume that after the impediment to their marriage had been removed the parties consented or...