Smith v. Smith

• Decision Date: 10 July 1903
• Docket Number: 13,219
• Citation: Smith v. Smith, 67 Kan. 841, 73 P. 56 (Kan. 1903)
• Parties: JOHN SMITH v. DORA SMITH
• Court: Kansas Supreme Court

73 P. 56

67 Kan. 841

JOHN SMITH v. DORA SMITH

No. 13,219

Supreme Court of Kansas

July 10, 1903

Decided July, 1903.

Error from Miami district court; W. H. SHELDON, judge.

Judgment affirmed.

W. L Joyce, for plaintiff in error.

Alpheus Lane, for defendant in error.

OPINION

Per Curiam:

This was an action by the defendant in error on a petition setting out facts which would warrant the entering of a decree for a divorce and alimony, or for alimony alone, against the plaintiff in error, then her husband. A decree for both divorce and alimony was entered. The most meritorious question raised on the petition is whether, under a petition whose allegations would authorize a divorce but the prayer of which is only that alimony be allowed, a decree of divorce should be granted. It is well settled in this state that the prayer of the petition forms no part of it, and that relief may be granted in accordance with the facts stated in the petition rather than pursuant to its prayer. (Smith v Kimball, 36 Kan. 474, 492, 13 P. 801; Walker v Fleming, 37 id. 171, 14 P. 470.) But it is here insisted that, where the facts pleaded warrant more than one kind of relief, plaintiff should have only such relief as he prays for; that otherwise defendant might be misled in the presentation of his evidence, not knowing the ultimate and true purpose of plaintiff in the prosecution of the action. No effort was made by the defendant to require the plaintiff to state how much relief she was desiring. He knew from the allegations of the petition that she might obtain a divorce. He chose to go into the trial without requesting a declaration as to the extent of the relief which she ...