Kapp v. District Court of Seventh Judicial Dist.

• Decision Date: 31 July 1909
• Docket Number: 1,833.
• Citation: Kapp v. District Court of Seventh Judicial Dist., 103 P. 235, 31 Nev. 444 (Nev. 1909)
• Parties: KAPP v. DISTRICT COURT OF SEVENTH JUDICIAL DIST. et al.
• Writing for the Court: SWEENEY, J.
• Court: Nevada Supreme Court

103 P. 235

31 Nev. 444

KAPP v. DISTRICT COURT OF SEVENTH JUDICIAL DIST. et al.

No. 1,833.

Supreme Court of Nevada

July 31, 1909

Certiorari by Charles F. Kapp against the District Court of the Seventh Judicial District of the State of Nevada, etc., and others. Writ dismissed.

Detch & Carney, for petitioner. Thompson, Morehouse & Thompson, for respondents.

SWEENEY J.

This is an original proceeding in certiorari, brought to review certain orders made in the respondents' court by the respondent judge in a divorce suit therein pending, modifying and increasing the amount of alimony granted respondent pendente lite from $100 to $200 per month, and adjudging petitioner guilty of contempt of court for failure to comply with the order of the court increasing said alimony. The complainant, Margaret G. Kapp, commenced an action on the 28th day of August, 1908, in the above-entitled district court against the petitioner herein, Charles F. Kapp, upon the ground of extreme cruelty. Upon the filing of said complaint said court issued an injunction restraining the said petitioner from interfering with the said Margaret G. Kapp, and enjoining him from transferring or disposing of any of his property pending the termination of the suit. Thereafter the plaintiff applied to the district court for alimony pendente lite, and the parties to the suit through their respective counsel entered into a stipulation respecting the alimony to be allowed pendente lite, granting respondent alimony of $100 per month, and certain court costs and counsel fees, which the court ordered in conformity with said stipulation, which was filed. Subsequently, on the 27th day of November, 1908, the respondent Margaret G. Kapp moved the court, upon due and regular notice and motion, to set aside the former order for $100 alimony, and grant plaintiff $400 per month pendente lite for several reasons assigned. This motion was contested upon affidavits and heard by the court, and the court, after hearing the application, increased the alimony from $100 to $200 per month. The defendant refused, failed, and neglected to comply with this last order commanding him to pay alimony whereupon an affidavit was filed, and an order made citing defendant to show cause why he should not be punished for contempt. In compliance with the order to show cause he duly appeared and filed an affidavit, setting forth, in effect that there was nothing in the change of situation of the respective parties to warrant the increase of the alimony averred, and that the court was without power, authority, or jurisdiction to enter such an order, and that for these reasons he could not be adjudged guilty of contempt, and moved to set aside and vacate the order fixing the alimony at $200 per month. After a hearing of the citation his motion was denied, and he was adjudged guilty of contempt for not obeying the order of the court, and sentenced, upon failure to comply with the order by 10 o'clock of the 12th day of April, 1909, to be committed to the county jail of the said Esmeralda county until the said order was complied with. This court has repeatedly and uniformly held that the inquiry upon the writ of certiorari will not be extended further than to determine whether the inferior tribunal has jurisdiction to make the orders complained of, and that if the record discloses it has complete jurisdiction, any error in the order of the court will not be considered. Maynard v Railey, 2 Nev. 313; State v. County Com'rs of Washoe County, 5 Nev. 317; State ex rel. Fall v. County Com'rs of Humboldt County, 6 Nev. 100; State ex rel. Mason v. County Com'rs of Ormsby County, 7 Nev. 392; Hetzel v. County Com'rs of Eureka County, 8 Nev. 359; Maxwell v. Rives, 11 Nev. 213; In re Wixom, 12 Nev. 219; State v. District Court, 16 Nev. 76; State v. District Court, 26 Nev. 253, 66 P. 743; Florence Goldfield Mfg. Co. v. 1st Jud. Court of Nev., 30 Nev. --, 97 P. 49; 4 Ency. Pl. & Pr. 127.

It is contended by petitioner that the facts set forth in plaintiff's complaint do not constitute a cause of action, in that the allegations in said complaint of cruel and inhuman treatment do not show any acts of physical violence, or any acts showing any threatening of injury, or facts sufficient to warrant the court in finding that the mental suffering arising therefrom sufficiently endangers the plaintiff's health, physically or mentally, to constitute extreme cruelty. Paragraph 3 of plaintiff's complaint alleges: "That shortly after their said marriage, defendant commenced toward plaintiff a course of cruel and inhuman conduct, of such character, as plaintiff alleges, constitutes extreme cruelty in this, to wit: That on divers occasions, without any fault, at their own residence here, in Goldfield, said defendant cruelly, wantonly, and inhumanly caught plaintiff by the throat, in an angry and threatening manner, and forced her out of the house, and threatened her, and directed and commanded that she leave and depart from their residence, and from her own home, and on divers and sundry occasions, the days and date whereof plaintiff cannot state with particularity, the said defendant spoke, of and concerning plaintiff, without cause therefor, vile and opprobrious names, with the intent and purpose to wound, annoy, fret, worry, and disturb the said plaintiff. That plaintiff is a weak and nervous woman, of education and refinement, and having, prior to her said marriage with the defendant, been brought up in good society, with good social, refined, and educated surroundings, and has all her life lived a virtuous and upright life, conducting herself in a ladylike and respectable manner, and has always sought to perform her part of her marital obligation to and with the defendant, but said defendant, without cause therefor, has so conducted himself toward the plaintiff, by reason of assaulting her physically and wounding and injuring her physically, and by calling her vile and opprobrious epithets, that plaintiff has become weak and nervous, and is in that weak and nervous condition that it is impossible for her to live with said defendant without serious injury to her health, and that by reason of the facts aforesaid said plaintiff has been compelled to and has lived separate and apart from said defendant in the same dwelling; that she is afraid of her life by reason of the conduct of the said defendant, and fearful of suffering great bodily injury at his hands--wherefore said plaintiff avers that said defendant has been and is guilty of extreme cruelty toward the plaintiff." We believe this allegation sufficient, if properly proven, to constitute extreme cruelty under the laws of this state.

This court, in the case of Kelly v. Kelly, 18 Nev. 55, 1 P. 195, 51 Am. Rep. 732, in passing upon the question of extreme cruelty, said: "In considering extreme cruelty as a ground of divorce courts have cautiously given it negative, rather than affirmative, definitions. The difficulty in giving an affirmative definition arises from the fact that cruelty is a relative term; its existence frequently depends upon the character and refinement of the parties, and the conclusion to be reached in each case must depend upon its own particular facts. 'We do not divorce savages and barbarians because they are such to each other,' said the Supreme Court of Pennsylvania, in Richards v. Richards. 'We can exercise no sound judgment in such cases [divorce cases] without studying the acts complained of in connection with the character of the parties, and for this we want the common sense of the jury rather than fixed legal rules.' (37 Pa. 228.) In the great case of Evans v. Evans, 1 Hagg. Cons. 35, Lord Stowell laid down certain principles which have been universally approved. He said: 'What is cruelty? In the present case it is hardly necessary for me to define it, because the facts here complained of are such as fall within the most restricted definition of cruelty; they affect not only the comfort, but they affect the health and even the life of the party. *** What merely wounds the mental feelings is in few cases to be admitted, when not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manner, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty; they are high moral offenses in the marriage state undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against which the law can relieve. *** In the older cases of this sort which I have had an opportunity of looking into, I have observed that the danger of life, limb, or health is usually inserted as the ground upon which the court has proceeded to a separation. This doctrine has been repeatedly applied by the court in the cases that have been cited. The court has never been driven off this ground. It has been always jealous of the inconvenience of departing from it, and I have heard no case cited in which the court has granted a divorce without proof given of a reasonable apprehension of bodily hurt. I say an apprehension, because assuredly the court is not to wait until the hurt is actually done; but the apprehension must be reasonable. It must not be an apprehension arising merely from an exquisite and diseased sensibility of the mind.' Adopting the principle that the element of danger to life, limb, or health, or the reasonable apprehension of such danger, must exist in order to constitute legal cruelty, can it be affirmed as matter of law that the plaintiff may not have established a cause of action under the complaint? If the conduct of which the defendant confesses to have been guilty, and which she admits...