Stover v. Stover

• Decision Date: 02 June 1900
• Citation: 7 Idaho 185,61 P. 462
• Parties: STOVER v. STOVER
• Court: Idaho Supreme Court

61 P. 462

7 Idaho 185

STOVER v. STOVER

Supreme Court of Idaho

June 2, 1900

ACTION FOR DIVORCE-DISMISSAL-MOTION-ERROR.-It is error for the district court to refuse to enter an order dismissing an action brought by a wife for divorce, when the plaintiff applies therefor, and there is no affirmative relief sought by the defendant by way of "cross-complaint or counterclaim. It is the policy of the law to discourage divorces; hence, where the plaintiff in a divorce suit asks to dismiss and no counter cause of action is set up in a cross-complaint or counterclaim, the refusal of the court to make the order dismissing the action is reversible error.

(Syllabus by the court.)

APPEAL from District Court, Blaine County.

Reversed and remanded, with instructions.

Silas W. Moody and Hawley, Puckett and Hawley, for Appellant.

Leave apparently ex parte, had been given respondent to file an amended answer and cross-complaint, but he had not filed either; there being nothing before the court at that time save the complaint, appellant was entitled to dismiss her action. (Rev. Stats., sec. 4354.)

No appearance for Respondent.

QUARLES J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

This is the second time that this cause has been before this court on appeal. Upon a decision of the first appeal (see Stover v. Stover, 6 Idaho 493, 56 P. 263). we held that the cross-complaint of the respondent did not state a cause of action, and that the respondent was not entitled there-under to the affirmative relief granted him by the judgment, and reversed the judgment. Upon the return of this cause to the lower court the plaintiff moved to dismiss her action, but her motion was denied, and the lower court refused to permit the plaintiff to dismiss her action. Two days thereafter the respondent (defendant below) was permitted to and did file an amended answer and cross-complaint, and answer was filed to said amended cross-complaint, and the court called a jury, which was impaneled to try the issues, which were found in favor of the respondent; whereupon judgment was entered in his favor, from which this appeal is prosecuted.

A number of errors are specified by appellant, but we deem it necessary to consider only one of them, viz., the refusal of the trial court to enter judgment dismissing the action. There being no cross-complaint nor counterclaim stating a cause of action and seeking affirmative relief in the case the plaintiff had the right, under section 5354 of the Revised Statutes, as matter of course, to dismiss her action. If there were any costs that had not been...