NICHOLS v. NICHOLS

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Docket Number

No. 35710.

Attorney(S)

F.D. Hewitt, of McComb, for appellant. It does not require a citation of authority to this Court to show that a bill of complaint must state a cause of action, and this is especially true in so serious a matter as domestic affairs and matters of divorce. A reading of the bill of complaint will demonstrate beyond any shadow of doubt that the appellee, complainant in the court below, failed utterly to state a cause of action, and therefore any decree based thereon is a nullity. Nell W. Hunt, of McComb, for appellee. The case has been properly tried in the chancery court of Pike County, Mississippi, ample service having been had on appellant and ample time in which to file any kind of an answer, and the record of said chancery court will disclose this, and the ruling of the trial court, and we ask that this matter, after consideration, be affirmed as to the decision rendered by the trial court.

Judges

Smith, C.J., delivered the opinion of the court.

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NICHOLS v. NICHOLS.

1. DIVORCE.

Complaint, alleging that wife went home to her people whenever any difference arose between husband and wife, that she habitually nagged husband accusing him of things he was not guilty of, and that life for them together became unbearable, did not state any ground for divorce.

2. DIVORCE.

Decree granting a divorce must be reversed where complaint failed to state any ground for divorce, even though there was neither answer nor demurrer to complaint.

Smith, C.J., delivered the opinion of the court.

This is an appeal from a decree granting a divorce. There was neither an answer nor demurrer to the bill of complaint. The bill of complaint contains no allegations bringing the case within any of the grounds for the granting of a divorce. On the contrary, if all of its allegations are true, no ground for divorce would appear therefrom. The decree must therefore be reversed. Pease Dwyer Co. v. Somers Planting Co., 130 Miss. 147, 93 So. 673; Odom v. Gulf S.I.R. Co., 101 Miss. 642, 57 So. 626; Carrier Lumber Mfg. Co. v. Quitman County, 156 Miss. 396, 124 So. 437, 125 So. 416, 66 A.L.R. 614; Smith v. Deas, 158 Miss. 111, 130 So. 105; United States F. G. Co. v. Plumbing Wholesale Company, 175 Miss. 675, 166 So. 529.

The material parts of this bill of complaint are as follows:
"Your complaint would show unto the Court that during the period of their married life, that he was a true, dutiful and loving husband, doing all that he should as a husband, to make their life happy and pleasant together, but that during the entire time, that the least little thing or argument that came up between them, the defendant herein would pack her clothes, and run back home to her people, and that this continued during the several months that they were married. Your complainant would further show that the defendant was forever and habitually nagging at him, accusing him of things he was not guilty of, and that life just became unbearable for them together.
"Your complainant would further show that following an argument in August 1942, the defendant packed her clothes and went home, and that they can not live together as husband and wife, and because of the ill treatment on the part of the defendant, he does not think it will be possible for them ever to live together, and therefore, he files his suit for a divorce."

Reversed and remanded.

NICHOLS v. NICHOLS.

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