Pettegrew v. Pettegrew
| Decision Date | 23 April 1935 |
| Docket Number | 29213. |
| Citation | 260 N.W. 287,128 Neb. 783 |
| Parties | PETTEGREW v. PETTEGREW. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Under the Nebraska statute relating to the dismissal of actions, a dismissal is not demandable as a right after the cause has been fully tried and unconditionally submitted to the court. Comp. St. 1929, § 20-601.
2. A ruling that involves judicial discretion is subject to review for an abuse thereof.
3. In appellate proceedings, an abuse of discretion by the trial judge does not imply improper motive, wilful purpose prejudice, partiality or intentional wrong.
4. In the exercise of judicial discretion, there is an abuse of that power where the reasons and rulings of the court are clearly untenable and deprive a party of a substantial right clearly and fairly established and amount to a denial of justice.
5. " Discretion," when invoked as a guide to judicial action, is a sound discretion exercised with regard to what is right and equitable under the circumstances and the law and directed by the reason and conscience of the judge to a just result.
6. After trial of a cross-action by a husband against his wife for a divorce, unconditional submission of the cause to the court for a decision and announcement from the bench that the charges against the wife were not proved, a dismissal of the cross-action without prejudice to a future action involving the same charges, held an abuse of discretion under the circumstances shown by the record for review.
Appeal from District Court, Douglas County; Rhoades Judge.
Action by Gertrude Pettegrew against Ivan D. Pettegrew, wherein defendant filed cross-petition. From the judgment, plaintiff appeals.
Judgment modified.
Dismissal is not demandable as of right after cause has been fully tried and unconditionally submitted to court. Comp.St.1929, § 20-601.
Ziegler & Dunn, of Omaha, for appellant.
H. T. White, of Omaha, for appellee.
Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, PAINE, and CARTER, JJ.
Gertrude Pettegrew, plaintiff, and Ivan D. Pettegrew, defendant, were married May 27, 1918. Plaintiff sued defendant for a divorce March 14, 1932, but withdrew her plea therefor and, by amended petition filed December 14, 1932, prayed for separate maintenance for herself and daughter, their only child, then three years of age, and for continued custody of her. It was alleged in the amended petition that defendant, without cause or provocation, deserted plaintiff October 30, 1930, and thereafter lived separate and apart from her, and that he had been guilty of extreme cruelty toward her prior to the desertion pleaded.
In an answer and cross-petition, defendant denied alleged desertion of plaintiff without cause, denied he had been guilty of extreme cruelty toward her, accused her of extreme cruelty toward him, giving details, and prayed for an absolute divorce from her and for the fixing of a reasonable sum for the support of plaintiff and the child.
Upon a trial of the cause, the district court found that plaintiff was entitled to custody of the child and to support for both and ordered defendant to pay his wife $100 a month, but he was permitted to dismiss his cross-petition for a divorce without prejudice to a future action. The cross-petition was so dismissed and from the judgment reserving to defendant the privilege of relitigating his charges that plaintiff had been guilty of extreme cruelty she appealed.
On the record presented for review, should the judgment dismissing the cross-petition of defendant for a divorce without prejudice to a new action be so modified as to prevent future litigation of the previously tried issues involving the charges of plaintiff's extreme cruelty toward defendant? That is the question presented for determination.
The position taken by plaintiff is that after the issues as to her alleged extreme cruelty toward defendant were fully tried, after the cause was submitted to the court and after a ruling thereon in her favor was announced from the bench, defendant presented a motion for permission to dismiss his cross-petition without prejudice to a future action and that the motion was improperly and erroneously sustained to the prejudice of plaintiff.
On the other hand, defendant confidently argued that the district court took the cause under advisement for further consideration, that a final decision had not been rendered when the motion was made, that it was within the discretion of the trial judge to sustain the motion and that he did so without any abuse of discretion.
The record of the decree recites that the cause was finally submitted to the trial court upon the evidence and arguments of counsel July 12, 1933, that the motion to dismiss the cross-petition was filed September 27, 1933, and that the decree was dated February 16, 1934. The bill of exceptions shows there was a hearing on the motion February 15, 1934, with counsel for both sides present. The final decree, however, had not been signed or entered on the court journal when the motion was filed, nor at the time of the hearing thereon, but the district judge stated, referring to the trial on the merits of the cause:
" The court at the close of the trial indicated that in its judgment the court was of the opinion that the proof of the cross-petitioner and the corroboration thereof was not sufficient to justify the court in granting a divorce to the cross-petitioner."
The same opinion was entertained by the trial judge when he ruled on the motion, because he then said from the bench:
The reasons for permitting defendant to relitigate what had already been tried and submitted for judgment was stated by the district judge as follows, when ruling on the motion:
A preponderance of the evidence considered by the court below on the motion tends to prove the following facts: The cause was tried on its merits for three days, June 27, 28, and 30 1933, and was argued and submitted July 12, 1933. Shortly thereafter the district court directed counsel for plaintiff to prepare a decree in her favor on her petition and against defendant on his cross-petition. A decree was accordingly prepared and delivered to the trial judge who said he would sign the decree within a short time, after notice to counsel for defendant in the presence of counsel for both sides in court. No action was taken on the decree until August 29, 1933, when the district judge notified counsel for plaintiff by letter that opposing counsel desired to file a ...
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