MR. JUSTICE FREEBOURN:
This is an action for divorce, appealed from the second judicial district of the state of Montana, in and for the county of Silver Bow, the Honorable T. E. Downey, district judge presiding.
Plaintiff husband had judgment and defendant wife appeals.
The complaint, after necessary allegations of marriage and residence, alleged there was no issue and “plaintiff prior to said marriage and subsequent thereto acquired and owned as his separate property a bank account in the Metals Bank and Trust Company, of Butte, Montana, of the value of $2,040.00 and certain stocks and bonds of the value of approximately $2,200.00, and certain real estate, situated in Madison County, State of Montana. ’ ’
It alleged extreme cruelty, a course of conduct, in the words
of the statute, followed by allegations of specific acts constituting the same. Among such acts alleged were, “That during the latter part of August, 1946, the said defendant without any cause or reason therefor, left the home occupied by the parties, withdrew from the bank the aforesaid bank account and all thereof, and took with her the aforesaid bonds and stocks, all of which was against the will and without the consent of the plaintiff. ’ ’
The prayer of the complaint asked that plaintiff be awarded an absolute divorce'; “2. That it be ordered, adjudged and decreed that plaintiff is the owner of the personalty and realty herein described and each and every part thereof and that defendant be ordered to execute and deliver instruments to plaintiff resting the title thereof in said plaintiff; 3. For such other and further relief as to the court may seem meet and equitable in the premises. ’ ’
Defendant filed her answer and cross-complaint admitting the allegations of the complaint as to marriage, residence and no issue. It denied all else in the complaint.
In a first affirmative defense the answer alleged the issues as to the realty mentioned in the complaint were being litigated in an action between the same parties in the district court of the fifth judicial district of the state of Montana, in the county of Madison.
In a second alleged affirmative defense, cross-complaint and counterclaim, the answer set up a cause of action for divorce on the ground of extreme cruelty. A decree of absolute divorce and permanent alimony in the sum of $100 per month were asked.
By reply plaintiff admitted the pendency of the action, as to the realty, in Madison county; the allegations of marriage and no issue. It denied everything else. The cause was tried in the lower court on November 24, 1947.
After findings of fact and conclusions of law made, the court in its decree: (1) awarded plaintiff an absolute divorce; (2) awarded plaintiff judgment against defendant in the amount of $2,040.00; (3) quieted title to the stock in plaintiff; and (4)
ordered, defendent to transfer and convey such stock to plaintiff.
The evidence is scant, but we draw from it that James Rogers, plaintiff, had for over 30 years, worked as a miner in the Butte mines; that he married Myrtle Rogers, defendant, then a waitress and sixteen years of age, in 1932; that at her request, and at his expense, he sent her to the Butte Business College, Montana University, Drake University, and the University of California; while she was away he regularly sent her money and gave her expensive rings; when she left him she took all available cash, except a few dollars, all evidence of title to his property, certain stocks, a deed to the ranch and bank book.
He testified he had put all his property in her name, never intending to give it to her. With the money secured from disposing of his real property near the Five Mile, at Butte, he purchased the ranch at Silver Star, in Madison County, Montana. He placed the title in his wife’s name. He understood she was to return the property to him if anything ever happened or if he should request it, to which she agreed. Defendant denied such understanding. She said she was sixteen years of age when married and worked at that time as a waitress; that, after marriage she attended the Butte Business College, Montana State University for three years, Drake University four years and the University of California for six weeks; that plaintiff assisted her financially with her education. Her testimony, in part, was:
“I
was entirely dependent upon his earnings until the end of 1941. Afterward I worked on several newspapers and in the Belgian embassy. My husband bought me several fur coats and diamond rings. I now speak several languages and live in Chicago, Illinois, where I work as a secretary at a substantial salary. The ranch at Silver Star had formerly belonged to my stepmother and the ranch was purchased with the proceeds from the condemnation proceedings. My husband took charge of the condemnation proceedings. At that time I was attending the University of Montana. The land that was condemned had been owned by the Rogers family for years. I left my husband, with
out his knowledge or consent, about October, 1946. All of his property had been placed in my name. We had a few hundred dollars at the ranch and I took all but $30.00 or $40.00. I also have spent almost all of the $2,040.00, that was in the Metals Bank, for my own purposes. I withdrew the same without Mr. Rogers knowing about it. I left the stocks in a rooming house in Butte. They belonged to my husband. I intended to give my husband one-half of the property including the money in the bank and I wrote letters to my step-mother to such effect, but I have not done so. The stocks are in my name, but I will endorse them and turn them over to him if produced, but I do not have them in my possession. Most of the money in the bank was earned and inherited by Mr. Rogers.”
In answer to repeated questions defendant refused to say if she had put $1.00 or more in the bank account.
Appellant has set out six specifications of error in her brief. We have considered all of these and find Nos. 1, 2 and 3, based upon the findings of fact and conclusions of law without merit because such findings of fact and conclusions of law are not incorporated in the decree. Defendant’s rights are in no way prejudiced since the decree and judgment is silent as to such findings of fact and conclusions of law. There is no adjudication to be questioned upon appeal when not contained in the decree. Lewis v. Lewis, 109 Mont. 42, 94 Pac. (2d) 211.
Findings of fact and conclusions of law do not constitute any part of the judgment but merely a foundation therefor. Galiger v. McNulty, 80 Mont. 339, 260 Pac. 401; State ex rel. Monteath v. District Court, 97 Mont. 530, 37 Pac. (2d) 567; Lewis v. Lewis, supra.
Neither party questions that part of the decree granting plaintiff an absolute divorce.
In the three remaining specifications of error appellant contends the court erred in (a) quieting title in plaintiff to the stocks; (b) ordering defendant to transfer and convey to plaintiff the stocks; and (c) adjudging that plaintiff recover from defendant the sum'of $2,040.
In disposing of the first two contentions we call attention to section 9191, R. C. M.
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MR. JUSTICE FREEBOURN:
This is an action for divorce, appealed from the second judicial district of the state of Montana, in and for the county of Silver Bow, the Honorable T. E. Downey, district judge presiding.
Plaintiff husband had judgment and defendant wife appeals.
The complaint, after necessary allegations of marriage and residence, alleged there was no issue and “plaintiff prior to said marriage and subsequent thereto acquired and owned as his separate property a bank account in the Metals Bank and Trust Company, of Butte, Montana, of the value of $2,040.00 and certain stocks and bonds of the value of approximately $2,200.00, and certain real estate, situated in Madison County, State of Montana. ’ ’
It alleged extreme cruelty, a course of conduct, in the words
of the statute, followed by allegations of specific acts constituting the same. Among such acts alleged were, “That during the latter part of August, 1946, the said defendant without any cause or reason therefor, left the home occupied by the parties, withdrew from the bank the aforesaid bank account and all thereof, and took with her the aforesaid bonds and stocks, all of which was against the will and without the consent of the plaintiff. ’ ’
The prayer of the complaint asked that plaintiff be awarded an absolute divorce'; “2. That it be ordered, adjudged and decreed that plaintiff is the owner of the personalty and realty herein described and each and every part thereof and that defendant be ordered to execute and deliver instruments to plaintiff resting the title thereof in said plaintiff; 3. For such other and further relief as to the court may seem meet and equitable in the premises. ’ ’
Defendant filed her answer and cross-complaint admitting the allegations of the complaint as to marriage, residence and no issue. It denied all else in the complaint.
In a first affirmative defense the answer alleged the issues as to the realty mentioned in the complaint were being litigated in an action between the same parties in the district court of the fifth judicial district of the state of Montana, in the county of Madison.
In a second alleged affirmative defense, cross-complaint and counterclaim, the answer set up a cause of action for divorce on the ground of extreme cruelty. A decree of absolute divorce and permanent alimony in the sum of $100 per month were asked.
By reply plaintiff admitted the pendency of the action, as to the realty, in Madison county; the allegations of marriage and no issue. It denied everything else. The cause was tried in the lower court on November 24, 1947.
After findings of fact and conclusions of law made, the court in its decree: (1) awarded plaintiff an absolute divorce; (2) awarded plaintiff judgment against defendant in the amount of $2,040.00; (3) quieted title to the stock in plaintiff; and (4)
ordered, defendent to transfer and convey such stock to plaintiff.
The evidence is scant, but we draw from it that James Rogers, plaintiff, had for over 30 years, worked as a miner in the Butte mines; that he married Myrtle Rogers, defendant, then a waitress and sixteen years of age, in 1932; that at her request, and at his expense, he sent her to the Butte Business College, Montana University, Drake University, and the University of California; while she was away he regularly sent her money and gave her expensive rings; when she left him she took all available cash, except a few dollars, all evidence of title to his property, certain stocks, a deed to the ranch and bank book.
He testified he had put all his property in her name, never intending to give it to her. With the money secured from disposing of his real property near the Five Mile, at Butte, he purchased the ranch at Silver Star, in Madison County, Montana. He placed the title in his wife’s name. He understood she was to return the property to him if anything ever happened or if he should request it, to which she agreed. Defendant denied such understanding. She said she was sixteen years of age when married and worked at that time as a waitress; that, after marriage she attended the Butte Business College, Montana State University for three years, Drake University four years and the University of California for six weeks; that plaintiff assisted her financially with her education. Her testimony, in part, was:
“I
was entirely dependent upon his earnings until the end of 1941. Afterward I worked on several newspapers and in the Belgian embassy. My husband bought me several fur coats and diamond rings. I now speak several languages and live in Chicago, Illinois, where I work as a secretary at a substantial salary. The ranch at Silver Star had formerly belonged to my stepmother and the ranch was purchased with the proceeds from the condemnation proceedings. My husband took charge of the condemnation proceedings. At that time I was attending the University of Montana. The land that was condemned had been owned by the Rogers family for years. I left my husband, with
out his knowledge or consent, about October, 1946. All of his property had been placed in my name. We had a few hundred dollars at the ranch and I took all but $30.00 or $40.00. I also have spent almost all of the $2,040.00, that was in the Metals Bank, for my own purposes. I withdrew the same without Mr. Rogers knowing about it. I left the stocks in a rooming house in Butte. They belonged to my husband. I intended to give my husband one-half of the property including the money in the bank and I wrote letters to my step-mother to such effect, but I have not done so. The stocks are in my name, but I will endorse them and turn them over to him if produced, but I do not have them in my possession. Most of the money in the bank was earned and inherited by Mr. Rogers.”
In answer to repeated questions defendant refused to say if she had put $1.00 or more in the bank account.
Appellant has set out six specifications of error in her brief. We have considered all of these and find Nos. 1, 2 and 3, based upon the findings of fact and conclusions of law without merit because such findings of fact and conclusions of law are not incorporated in the decree. Defendant’s rights are in no way prejudiced since the decree and judgment is silent as to such findings of fact and conclusions of law. There is no adjudication to be questioned upon appeal when not contained in the decree. Lewis v. Lewis, 109 Mont. 42, 94 Pac. (2d) 211.
Findings of fact and conclusions of law do not constitute any part of the judgment but merely a foundation therefor. Galiger v. McNulty, 80 Mont. 339, 260 Pac. 401; State ex rel. Monteath v. District Court, 97 Mont. 530, 37 Pac. (2d) 567; Lewis v. Lewis, supra.
Neither party questions that part of the decree granting plaintiff an absolute divorce.
In the three remaining specifications of error appellant contends the court erred in (a) quieting title in plaintiff to the stocks; (b) ordering defendant to transfer and convey to plaintiff the stocks; and (c) adjudging that plaintiff recover from defendant the sum'of $2,040.
In disposing of the first two contentions we call attention to section 9191, R. C. M. 1935, which provides: “The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect.”
No substantial right of appellant was affected by the court quieting title to the stocks in plaintiff and in ordering defendant to transfer and convey them to plaintiff.
According to the transcript defendant testified: “I left the stocks in a rooming house in Butte. They belonged to my husband. The stocks are in my name, but I will endorse them and turn them over to him if produced, but I do not have them in my possession.”
The defendant made no claim to the stocks and stated they belonged to plaintiff. Hence there could be no harm in quieting-title in plaintiff and ordering such stock assigned to him. If the defendant did leave the stock, valued at $2,200, in some unnamed rooming- house in Butte, she could still have assigned it to plaintiff, according to counsel, by making an independent assignment. She has signified her willingness to do almost this exact thing-. She could suffer no harm by the court directing her to do that which she could do and which she said she was willing to do.
This leads then to the question, did the court commit prejudicial error in adjudging that plaintiff recover from defendant the amount of $2,040?
This is the amount- of the bank account at the Metals Bank which the testimony showed stood in defendant’s name but was money derived from his earnings and sale of land, under condemnation proceedings, long in the Rogers family, and inherited by plaintiff from his relatives. The court could have found from the evidence before it that no part of such bank account had been deposited by defendant, as her own separate property; that she had no interest in it; that at defendant’s suggestion the
money was deposited in her name with the understanding that she would have it in the event of plaintiff’s death; that she would have no present interest in it and would upon request return’ all of it to plaintiff; that she would return it to plaintiff if anything ever happened; that she took it without plaintiff’s knowledge and consent and instead of giving him one-half of it, as she testified she intended to, she had in fact, spent most of it for her own purposes. Defendant also admitted that “most of the money in the bank was earned or inherited by plaintiff. ’ ’
The complaint alleged the $2,040 was plaintiff’s separate property; that, trusting defendant, it was placed in her name although she had no interest in it; and that she took the money without plaintiff’s consent.
The prayer of the complaint asked: “3. For such other and further relief as to the court may seem meet and equitable in the premises. ’ ’
No demurrer or motion was filed to the complaint. The answer made issue with a denial. Evidence, on the money issue, was given by both parties, freely, voluntarily and without objection.
The complaint states a cause of action for divorce. Under the demand for general relief the court could, under the circumstances here, grant any relief to which plaintiff was entitled, upon the allegations of the complaint and the proof introduced.
Section 9164, R. C. M. 1935, provides: “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. ’ ’
“* * ® whatever is necessarily implied in, or is reasonably to be inferred from, an allegation is to be taken as directly averred.” Gauss v. Trump, 48 Mont. 92, 135 Pac. 910, 912; Harmon v. Fox, 31 Mont. 324, 78 Pac. 517.
Section 9316, R. C. M. 1935, states: “The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but
in any other case
the court may grant him any relief consistent with the case made by.the complaint and embraced within the issue.” (Emphasis supplied.)
Further: “The prayer of an equity pleading does not conclude the pleader, and he may have such relief as he shows himself entitled to. ’ ’ Kleinschmidt v. Steele, 15 Mont. 181, 38 Pac. 827, 828; State ex rel. Russell v. Tooker, 18 Mont. 540, 46 Pac. 530, 34 L. R. A. 315; Davis v. Davis, 9 Mont. 267, 23 Pac. 715.
In Gauss v. Trump, supra, this court said: “Where the inferential allegations of a pleading are not attacked by special demurrer or motion, as may be appropriate, we know of no modern authority which denies the right of the pleader to make proof under them; and that such an allegation as the one before us will support proof was intimated in Jones v. Rich, 20 Mont. 289, 50 Pac. 936, and expressly decided in Wise v. Hogan, 77 Cal. 184, 19 Pac. 278. To all this we add the statutory injunction that no judgment shall be reversed by reason of any error or defect in the pleadings which does not affect the substantial rights of the parties. Rev. Codes, sec. 6593.”
In Merk et al. v. Bowery Min. Co., 31 Mont. 298, 78 Pac. 519, 523, this court said: “Is the complaint to restrain prosecution of a forcible entry and detainer suit? We need not consider whether the complaint states facts sufficient to constitute such cause of action if it does state facts sufficient to constitute a cause of action for any other relief, as the fifth subdivision of the prayer of the complaint is as follows: ‘That the plaintiffs may have such other and further relief as shall be meet and agreeable to equity and good conscience.’ This is sufficient to warrant the court in granting any relief to which the plaintiffs are entitled upon the allegations of the complaint and the proof introduced * *
In Davis v. Freisheimer, 68 Mont. 322, 219 Pac. 236, 239, this court said: ‘ ‘ This is a good illustration of the common sense rule that, unless there is a want of substance in a complaint upon the particular issue involved and a failure of proof in consequence, a case should not be reversed at the instance of a defendant who has not been deprived of a substantial right, but who, on the contrary, has been enabled to and has defended the action upon the merits of the cause irrespective of the technical condition of
tlie pleadings. The idea that a disappointed litigant who has had a fair and impartial trial upon the merits of the cause may obtain a new trial because of the absence of a nonessential allegation, or for some mere defect in a pleading, is archaic, and has been relegated to the past in this jurisdiction.” See also, Donovan v. McDevitt et al., 36 Mont. 61, 92 Pac. 49.
Under the circumstances, pleadings, issues, evidence and law, plaintiff was entitled to a judgment for the money taken.
No prejudicial error being shown, the judgment is affirmed.
Mr. Justice Angstman concurs.