Birdzell, J.
This is an action for divorce, and comes before this court upon an appeal from the judgment of the district court of Ward county, decreeing a divorce to the defendant upon his counterclaim, and awarding to the plaintiff certain property as her separate estate; also awarding to the plaintiff the custody of a minor child, Angeline, a daughter, the only child of the marriage, who has since become of age. The appeal is taken under § 7848, Comp. Laws 1913, and the appellant demands a review and a retrial of the entire case in the supreme court. He indicates, however, in his assignment and in the briefs filed in this court, that he desires a review of only that portion of the judgment which awards the division of property. In view of the conclusions reached by this court upon a painstaking study of the [641] voluminous record, we shall undertake to state only such facts relating to the marital relations as lead to our conclusions, and these will be stated in connection with the discussioin of the questions presented.
This case has been twice argued, the reargument having been ordered by the court for the purpose of clearing up doubts entertained with reference to the legal propriety of disposing finally of the case, as this court is directed to do under § 7846, Comp. Laws 1913, without a thorough consideration and review of that portion of the judgment which awards the defendant a divorce. While respondent does not complain of that portion of the judgment, it is nevertheless insisted on her behalf that the propriety of the property division ordered must be judged in the light of the facts disclosed by the whole record, which, her counsel argue, entitled her to a divorce. While the appellant accepts as correct the portion of the judgment which awards him a divorce upon his cross complaint, and insists that the record warrants the judgment in his favor, he expresses, through his attorney in open court, a willingness to abide the decision of this court as to whether the judgment should not be so modified as to continue the marriage tie. Nevertheless, the appellant contends that this court is powerless to enter any order which will have the effect of modifying the judgment of the lower court in a particular not urged by him upon this appeal. His contention is that, since there was no cross appeal, any portion of the judgment accepted by the appellant as satisfactory cannot be complained of by the adverse party. In this contention, for reasons that will be assigned later, we have concluded that the appellant is in error. It may be remarked here that the statute under which the appeal is taken makes it the duty of the supreme court to effect a final disposition of the case, if justice can be done, without a new trial in the lower court, and to this end this court is authorized to affirm or modify the judgment or direct the entry of a new judgment in the district court.
A brief statement of the procedural facts will lead to a better understanding of the legal questions presented.
It seems that, at the conclusion of the trial, the trial judge made a memorandum decision in which it was stated: “I have come to the conclusion that both parties are to blame, that both parties are guilty of acts sufficient to constitute cruel and inhuman treatment under the statute, and that, therefore, neither party is entitled to a decree of [642] divorce.” The court also held that the custody of the child should be awarded temporarily to the mother, and that she, the mother, should receive $150 monthly, until the further order of the court, for the support of herself and child. Following this decision no formal findings were drawn, and, about three months thereafter, it appears that there was a substitution of attorneys; that motions were filed, — one for the reopening of the case for the purpose of taking further testimony touching the value of defendant’s property, and another asking for the division of the defendant’s property; that these motions were disposed of by the denial of the former motion and the granting of the latter. The motion granted was in the nature of a petition for division of the property, and it seems to have been based upon the unsatisfactory character of the provision made for the support of the plaintiff. The petition represents to the court that if it is necessary, under the law, that a divorce be granted, in order to make a permanent and equitable disposition of the property of the parties, the plaintiff petitioner “consents and is willing that the court enter a decree of divorce herein in favor of the defendant and against this plaintiff upon the grounds of extreme cruelty, as demanded by the defendant in his answer and counterclaim, if the court finds that the evidence herein is sufficient to support said grounds of extreme cruelty on the part of the plaintiff, without considering the testimony of the plaintiff herein relative to the acts of the defendant in so far as the same affects his right to a decree of divorce on the grounds of extreme cruelty; and provided that the court by granting the defendant a decree of divorce on said grounds can legally, and will, make an equitable division of the property, and by such decree set apart to this plaintiff, absolutely, such of the property of the parties hereto as to the court shall seem just and equitable.” And that, “in the event that such permanent division of the property aforesaid cannot be lawfully made herein by the court, then this petition and consent to be of no force and effect whatsoever.”
After the presentation of the foregoing petition the court made findings of fact and conclusions of law, and an order for judgment in accordance with the prayer of the.petition. The court found the plaintiff guilty of assaults upon the defendant and of some acts termed indiscretions, which acts and conduct caused the defendant mental suffering, and also found or stated that, by reason of the long length [643] of time intervening between tbe taking of tbe testimony and. tbe submission of the case to tbe court for determination, tbe court would not undertake to detail in particular any of tbe various acts of cruelty, wbicb tbe evidence disclosed, upon tbe part of tbe plaintiff, and that tbe conduct of tbe defendant toward tbe plaintiff was partially responsible for and contributed to tbe same. Upon these findings tbe court concluded that tbe defendant was entitled to a divorce from tbe plaintiff and an equitable division of tbe property.
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Birdzell, J.
This is an action for divorce, and comes before this court upon an appeal from the judgment of the district court of Ward county, decreeing a divorce to the defendant upon his counterclaim, and awarding to the plaintiff certain property as her separate estate; also awarding to the plaintiff the custody of a minor child, Angeline, a daughter, the only child of the marriage, who has since become of age. The appeal is taken under § 7848, Comp. Laws 1913, and the appellant demands a review and a retrial of the entire case in the supreme court. He indicates, however, in his assignment and in the briefs filed in this court, that he desires a review of only that portion of the judgment which awards the division of property. In view of the conclusions reached by this court upon a painstaking study of the [641] voluminous record, we shall undertake to state only such facts relating to the marital relations as lead to our conclusions, and these will be stated in connection with the discussioin of the questions presented.
This case has been twice argued, the reargument having been ordered by the court for the purpose of clearing up doubts entertained with reference to the legal propriety of disposing finally of the case, as this court is directed to do under § 7846, Comp. Laws 1913, without a thorough consideration and review of that portion of the judgment which awards the defendant a divorce. While respondent does not complain of that portion of the judgment, it is nevertheless insisted on her behalf that the propriety of the property division ordered must be judged in the light of the facts disclosed by the whole record, which, her counsel argue, entitled her to a divorce. While the appellant accepts as correct the portion of the judgment which awards him a divorce upon his cross complaint, and insists that the record warrants the judgment in his favor, he expresses, through his attorney in open court, a willingness to abide the decision of this court as to whether the judgment should not be so modified as to continue the marriage tie. Nevertheless, the appellant contends that this court is powerless to enter any order which will have the effect of modifying the judgment of the lower court in a particular not urged by him upon this appeal. His contention is that, since there was no cross appeal, any portion of the judgment accepted by the appellant as satisfactory cannot be complained of by the adverse party. In this contention, for reasons that will be assigned later, we have concluded that the appellant is in error. It may be remarked here that the statute under which the appeal is taken makes it the duty of the supreme court to effect a final disposition of the case, if justice can be done, without a new trial in the lower court, and to this end this court is authorized to affirm or modify the judgment or direct the entry of a new judgment in the district court.
A brief statement of the procedural facts will lead to a better understanding of the legal questions presented.
It seems that, at the conclusion of the trial, the trial judge made a memorandum decision in which it was stated: “I have come to the conclusion that both parties are to blame, that both parties are guilty of acts sufficient to constitute cruel and inhuman treatment under the statute, and that, therefore, neither party is entitled to a decree of [642] divorce.” The court also held that the custody of the child should be awarded temporarily to the mother, and that she, the mother, should receive $150 monthly, until the further order of the court, for the support of herself and child. Following this decision no formal findings were drawn, and, about three months thereafter, it appears that there was a substitution of attorneys; that motions were filed, — one for the reopening of the case for the purpose of taking further testimony touching the value of defendant’s property, and another asking for the division of the defendant’s property; that these motions were disposed of by the denial of the former motion and the granting of the latter. The motion granted was in the nature of a petition for division of the property, and it seems to have been based upon the unsatisfactory character of the provision made for the support of the plaintiff. The petition represents to the court that if it is necessary, under the law, that a divorce be granted, in order to make a permanent and equitable disposition of the property of the parties, the plaintiff petitioner “consents and is willing that the court enter a decree of divorce herein in favor of the defendant and against this plaintiff upon the grounds of extreme cruelty, as demanded by the defendant in his answer and counterclaim, if the court finds that the evidence herein is sufficient to support said grounds of extreme cruelty on the part of the plaintiff, without considering the testimony of the plaintiff herein relative to the acts of the defendant in so far as the same affects his right to a decree of divorce on the grounds of extreme cruelty; and provided that the court by granting the defendant a decree of divorce on said grounds can legally, and will, make an equitable division of the property, and by such decree set apart to this plaintiff, absolutely, such of the property of the parties hereto as to the court shall seem just and equitable.” And that, “in the event that such permanent division of the property aforesaid cannot be lawfully made herein by the court, then this petition and consent to be of no force and effect whatsoever.”
After the presentation of the foregoing petition the court made findings of fact and conclusions of law, and an order for judgment in accordance with the prayer of the.petition. The court found the plaintiff guilty of assaults upon the defendant and of some acts termed indiscretions, which acts and conduct caused the defendant mental suffering, and also found or stated that, by reason of the long length [643] of time intervening between tbe taking of tbe testimony and. tbe submission of the case to tbe court for determination, tbe court would not undertake to detail in particular any of tbe various acts of cruelty, wbicb tbe evidence disclosed, upon tbe part of tbe plaintiff, and that tbe conduct of tbe defendant toward tbe plaintiff was partially responsible for and contributed to tbe same. Upon these findings tbe court concluded that tbe defendant was entitled to a divorce from tbe plaintiff and an equitable division of tbe property.
It becomes important at this point to determine whether or not this portion of tbe judgment is open to review upon this appeal, and, if so, whether tbe court can properly dispose of tbe appeal without entering into tbe merits of tbe whole judgment,- — -even tbe part wbicb is not assailed. That portion of tbe judgment wbicb distributes tbe property binges directly upon tbe part wbicb dissolves tbe marital status. This action is not brought to determine tbe separate property rights of tbe plaintiff and defendant, and there is no action known to tbe law whereby one spouse may obtain a separate interest in tbe property of tbe other while tbe marriage tie continues. While our law recognizes that there may be a suit for alimony and separate maintenance, independent of proceedings for divorce (Hagert v. Hagert, 22 N. D. 290, 38 L.R.A.(N.S.) 966, 133 N. W. 1035, Ann. Cas. 1914B, 925), tbe judgment, in so far as it affects tbe property of tbe defendant, can do no more than charge it with a lien for tbe payment of such alimony or maintenance. It is worthy of note in this cdnnection that § 4401, Comp. Laws 1913, makes express provision for tbe allowance of maintenance in a divorce action where tbe divorce is denied, and that this section is entirely silent upon tbe matter of property division. Section 4405, Comp. Laws 1913, provides expressly for a distribution of tbe property when tbe divorce is granted. Since there is no proceeding known to tbe law wherein there may be a distribution of property between a husband and a wife, based upon their inability to continue tbe normal marital relations, tbe manifest implication of tbe foregoing statutes is that there can be no property distribution unless there be a judgment or decree of divorce. 1 Bishop, Marr. Div. & Sep. § 1415; 14 Cyc. 780, 789, 792; Murray v. Murray, 84 Ala. 363, 4 So. 239; Campbell v. Campbell, 37 Wis. 206. It follows from this that, where a judgment decrees both a divorce and a property distribution, tbe different portions [644] of the judgment are so far interdependent that any examination into the latter portion necessitates a review of the whole judgment for the purpose of determining the propriety of the judgment of divorce itself. Thus, when the appellant challenges particularly that portion of the judgment setting aside certain property to the respondent, and, to support his challenge, questions the correctness of the findings of fact upon which the distribution was based, he presents questions which involve the correctness of the judgment of divorce. It is the manifest duty of this court, upon an appeal of this character, to review the entire record for the purpose of disposing of the case according to the provisions of the statute under which the appeal is taken, and in divorce cases this duty rests upon the court regardless of the desires of counsel or parties that, if possible, the case be disposed of without affecting the judgment of divorce. We would be prone to adopt this view even if we regarded the question as being an open one in this jurisdiction, but we do not regard the question as being any longer open to dispute.
Where a retrial is had in this court under § 7846, Comp. Laws 1913, and where it is not limited to the review of specific questions of fact, the entire record is here for review for the purpose of enabling the court to entér such judgment as is appropriate upon the whole record. As was said by Chief Justice Corliss in the case of Tyler v. Shea, 4 N. D. 377, at page 385, 50 Am. St. Rep. 660, 61 N. W. 468: “The appellant could not ask for a new trial of the case with reference to those provisions of the judgment which were against him, and at the same time insist that the balance of the judgment favorable to him should stand without investigation. When a case is appealed for a new trial, the whole case is open for judicial inspection; and the decision upon such new trial must necessarily be founded upon an examination of the case as broad as that made by the lower court. . . . Where the claim is indivisible, and is all in dispute, the appeal for a new trial gives the defendant the same right to be heard on the whole case which it gives to the plaintiff who appeals. In such a case, the ordinary rule that the respondent cannot complain of those portions of the judgment which are against him, or, indeed of any portion of the judgment, does not apply, because the appellant, by the nature of the relief he seeks by his appealing for a new trial, opens up the entire case to a second investigation.”
[645] It is true that the act under which the appeal in that case was taken contained no provision authorizing the appellant to specify in the statement of the case questions of fact that he desired the supreme court to review, as does § 7846, 'Comp. Laws 1913. But the above quotation is as applicable upon this point to the case at bar as though the statute had never been modified. The appeal is from the entire judgment, the trial is a trial de novo, and the appellant cannot complain if this court carries its review of the evidence to the point of determining the correctness of a related portion of the judgment, which must rest upon the facts that he asks this court to review. In brief, the appellant’s attempted limited specification of facts is in reality not a specification of facts at all, but rather a specification of conclusions which the appellant contends are erroneous. What he really contends for is the right to have a review of a portion of the judgment appealed from. This court' has held that there can be no such thing as a trial d& novo in the supreme court upon an appeal from a portion of the judgment, and there are excellent reasons why an appellant cannot do indirectly, upon an appeal from a judgment, what he is not permitted to do directly by appealing from a portion of the judgment. See opinion by Young, Justice, in Prescott v. Brooks, 11 N. D. 93-101, 90 N. W. 129. Prom the rule that there can be no appeal and trial de novo as to a portion of the. judgment under § 7846, Comp. Laws 1913, it must be accepted as a corollary that there can be no trial de novo in this court as to a portion' of the judgment, where the whole is appealed from, except, of course, a partial review of questions of fact only. Sound practice requires that this should be so. If an appellant who has appealed from the entire judgment, and who has specified in his notice that he desired a review of the entire case, could subsequently limit his appeal to a review of a portion of the judgment alone, he would have it within his power to thereby unduly prejudice an adverse party. The respondent has the right to rely upon the notice of appeal as removing to this court the entire record for trial de novo. It is reasonable to assume that he is contended with the judgment of the lower court as it stands, and that he will be prepared to substantiate it upon a full review in this court. Surely he is not bound to anticipate that the appellant may later on attempt to limit the appeal by asking for a review of certain portions of the judgment only! Such a practice would necessitate a cross appeal [646] by the respondent in every case as a matter of precaution. Being of the opinion that the entire judgment is here for review, we are now brought to- a determination of the facts upon which the correctness of the decision of the trial court depends.
A perusal of the record convinces us beyond peradventure that the statement of the trial court in the memorandum decision rendered at the close of the trial, and upon which no formal findings and conclusions were made, was fully warranted by the testimony.
The record is replete with testimony going to show that both plaintiff and defendant have repeatedly been guilty of acts of cruelty toward one another, and the testimony upon both sides is amply corroborated by witnesses other than the parties themselves, and by-the circumstances as they are presented in the record. It appears that for a period of several years there has been lacking the mutual confidence in the fidelity of each to the other that is essential to the enjoyment of an harmonious married life; and it also appears that this lack of confidence was so frequently expressed by both parties as to afford a constant source of friction between them, .provoking many quarrels of a more or less violent nature.
It is true that the testimony of the plaintiff and the defendant conflicts with reference to the character of the expressions used by the defendant from time to time, and also with reference to the character of the acts of cruelty of the plaintiff towards the defendant; but a careful reading of all of the testimony bearing upon their frequent quarrels leads irresistibly to the conclusion that both parties were at fault. If the plaintiff was guilty of cruelly treating her husband, it quite conclusively appears that the conduct of the husband towards the plaintiff was such as to arouse her temper, and to provoke the assaults; and to the extent that the defendant was guilty of cruelly treating his wife, it appears that her conduct and her temper largely provoked his acts.
It would serve no good purpose here to narrate in detail the various acts of cruelty testified to by the various witnesses, with a view to weighing and sifting the testimony for the purpose of ascertaining where the exact truth lies with respect to each transaction testified to. After spending a great amount of time in considering the testimony, [647] we are confident that it amply supports the conclusion that each of the parties has been guilty of cruelty towards the other. This alone is a sufficient reason for denying a divorce.
■ Bishop on Marriage, Divorce, and Separation, lays down what we regard as the correct rule applicable to cases of this character. It is stated thus: “Recrimination in divorce law is the defense that the applicant has himself done what is ground for divorce either from bed and board or from the bond of matrimony. It bars the suit founded on whatever cause, whether the defendant is guilty or not.” 2 Bishop, Marr, Div. & Sep. § 340. And again the rule is stated thus: (§ 365) “It is a bar to any suit to dissolve a valid marriage, or to separate the parties from bed and board, that either before or after the complained-of delictum transpired, the plaintiff himself did.what, whether of the like offending or any other, was cause for a divorce of either sort.” Where, as in North Dakota, the legislature has provided the same legal effect for every recognized cause for divorce, it is not for the courts to measure the gravity of the different causes. They should not determine that an offense which, in their judgment, may be a stronger cause for divorce than some other which is recognized by the legislature, overcomes the effect of the complaining party’s seemingly lesser offense. In fact, § 4393, Comp. Laws 1913, expressly recognizes as recriminatory any acts on the part of the complaining party which are a cause of divorce against such party. This is even true where a divorce is sought on the ground of adultery, and where the spouse who charges the adultery is guilty of what may be termed a minor cause for divorce. See Wilson v. Wilson, 89 Neb. 149, 132 N. W. 401; Pease v. Pease, 12 Wis. 136, 39 N. W. 133; Church v. Church, 16 R. I. 661, 1 L.R.A. 385, 19 Atl. 224. Note to Ellett v. Ellett, 39 L.R.A.(N.S.) 1135.
It is very earnestly argued on behalf of the appellant that the record establishes a charge made by the defendant in his cross complaint, that the plaintitff had committed adultery. Even though this were established, we would not feel warranted in granting the .divorce for the reasons indicated above. But notwithstanding this, we have carefully considered all of the testimony bearing upon this charge, and find it lacking in that degree of directness and circumstantial strength to warrant a. finding that the plaintiff was guilty of adultery on any of [648] the occasions alleged. We feel that the most that can be said of the acts of the plaintiff in her relations with other men is that her acts amounted to indiscretions. There is no evidence in the record going to establish such charge directly, nor is there any evidence proving circumstances to have existed from which the inference of guilt should be drawn.
It is a well-established rule that, where adultery is relied upon as a ground for divorce, .the proof must be clear and positive. 14 Cyc. 692, and authorities cited thereunder. And that, where circumstantial evidence is relied upon as establishing the guilt of the accused, the circumstances must be sufficiently strong to warrant “a just and reasonable man” in drawing the inference of guilt. If the circumstances merely create a suspicion of guilt, it is not sufficient. 14 Cyc. 694. We are all agreed that the defendant in this case did not substantiate a charge of adultery by evidence which was legally sufficient to sustain the burden of proof.
Being of the .opinion that, under the evidence disclosed by this record, neither party is entitled to the relief prayed for, the questions at issue respecting the property division cannot be disposed of by awarding a division of the property, as was done by the trial court. The evidence, however, bearing upon the valuation of the defendant’s property and of the defendant’s financial worth is of such an unsatisfactory character that we feel that an injustice might result to this plaintiff by reason of awarding alimony, based upon the evidence taken at the trial, which was had more than two years ago. The case is therefore remanded to the trial court for the taking of additional testimony bearing upon the value of the defendant’s property and his financial worth, and the trial court is directed to enter an order providing for alimony to be allowed to the plaintiff in such sum as shall seem to him proper under such evidence and all the circumstances. There shall also be awarded to the plaintiff $1,000 suit money, incident to this appeal, and the defendant and appellant shall pay the costs hereof. The child, Angeline, having become of age during the pendency of this proceeding, requires no further protection by the order of the court. The judgment of the trial court, awarding a divorce and property division, [649] is reversed and the cause is remanded for further proceedings in accordance with this opinion.
Grace, J. I dissent.