Weisheyer v. Weisheyer

• Decision Date: 05 January 1932
• Docket Number: 2947.
• Citation: 6 P.2d 439,54 Nev. 76
• Parties: WEISHEYER v. WEISHEYER.
• Court: Nevada Supreme Court

6 P.2d 439

54 Nev. 76

WEISHEYER v. WEISHEYER.

No. 2947.

Supreme Court of Nevada

January 5, 1932

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

Divorce action by Henry W. Weisheyer against Wilhelmina Weisheyer. Judgment for plaintiff, and defendant appeals from an order overruling and denying her motion for a new trial.

Affirmed.

N. J Barry, of Reno, for appellant.

Sardis Summerfield, of Reno, for respondent.

SANDERS J.

This was an action for divorce instituted by the husband, Henry W Weisheyer, as plaintiff, against his wife, Wilhelmina Weisheyer as defendant. After a trial of the issues judgment went for the plaintiff. The defendant appeals from an order overruling and denying her motion made for new trial of the action.

The order in question is presented for review on briefs. The facts which concern the two assignments of error relied upon for the reversal of the order are as follows:

The parties intermarried at the city of St. Louis, state of Missouri, in the year 1902, which city was their marital domicile during all of the time they lived together as husband and wife. Because of marital differences existing between the parties during and since the year 1920, Henry W Weisheyer in July, 1926, filed a petition in the circuit court of the city of St. Louis, state of Missouri, against Wilhelmina Weisheyer for divorce on the ground of cruel and barbarous treatment. After a trial of the issues said court, on, to wit, December 6, 1926, entered judgment of dismissal of the petition upon the ground that the plaintiff was not an injured and innocent party.

Thereafter, to wit, on January 19, 1927, Wilhelmina Weisheyer, as plaintiff, filed her petition in the circuit court of the city of St. Louis, state of Missouri, against Henry W. Weisheyer, as defendant, to recover separate maintenance under the Missouri statutes, alleging as ground therefor that the plaintiff had been abandoned by the defendant and since December 1, 1926, he had refused and neglected to maintain and provide for plaintiff.

On the day on which the petition for separate maintenance was filed, to wit, January 19, 1927, Wilhelmina Weisheyer, a stockholder in the Norma Realty Company, a corporation, instituted an action in said circuit court of the city of St. Louis, state of Missouri, against said Norma Realty Company and joined Henry W. Weisheyer with others as parties defendant. The declared and avowed purpose of the suit was to obtain an accounting of the business affairs and property of the defendant corporation and for an injunction and the appointment of a temporary receiver. The defendant corporation was a small family corporation dominated and controlled by Henry W. Weisheyer, who was its president and treasurer. After issues had been joined upon the pleadings, Wilhelmina Weisheyer, with leave of court, on March 18, 1927, filed her amended petition in the cause. No answer was filed to the petition as amended for the reason that the case was settled out of court by the purchase of the plaintiff's shares of stock in the corporation by the defendant, Henry W. Weisheyer, and upon her written statement filed in the cause that she would vacate the property of the corporation then occupied by her with Henry W. Weisheyer as a home in said city of St. Louis. Pursuant to the terms of settlement, the cause was dismissed to the prejudice of the plaintiff on March 24, 1927, and at the costs of the defendants. In her original and amended petition the plaintiff made certain charges against Henry W. Weisheyer, as president and treasurer of the Norma Realty Company, a corporation, which charges furnish the basis for the present action in Nevada for divorce on the ground of extreme cruelty.

Some time in the forepart of the year 1928, Henry W. Weisheyer came to Nevada and on June 26, 1928, took up his residence in the city of Reno, Washoe county. After the expiration of three months' residence in said city and county required by law to obtain a divorce, Henry W. Weisheyer filed his complaint in the court below for divorce from the defendant, Wilhelmina Weisheyer, on the ground of extreme cruelty and also upon the ground of willful desertion. For a first cause of action for cruelty the complaint alleged that on March 18, 1927, the defendant, Wilhelmina Weisheyer, filed in the circuit court of the city of St. Louis, state of Missouri, an amended verified petition in an action then and there pending in said court entitled, "Wilhelmina Weisheyer, Plaintiff, Vs. Norma Realty Company, a corporation, Lillian Weigl, Martha Heintze, August C. Hilmer and Henry W. Weisheyer, defendants," in which she charged Henry W. Weisheyer with the performance of certain acts in the following language, to wit: "And the defendant Henry W. Weisheyer, in the exercise of his power and control of the defendant Norma Realty Company, as aforesaid, has usurped the office of President and Treasurer of said Corporation, and has dominated and controlled its business and affairs; and has failed and refused to account for his conduct in the management and disposition of the funds, property and business of said Corporation, and has acquired unto himself sums of money and property belonging to said corporation, and applied the use of the same to his own use and benefit in private business endeavors of his own; and in violation of law, has loaned moneys, the property of the defendant Norma Realty Company to the defendant Lillian Weigl, a stockholder in the defendant Realty Company."

The complaint alleges that the accusations quoted were false and unfounded in fact...