Page:Harvard Law Review Volume 4.djvu/46

30 30 HARVARD LAW REVIEW, The allegations of such fact without their proof would be futile. Certainly it seems the proof of them without allegations is equally so. Mrs. Roe does not allege title to $1,200 alimony; she consequently is unable to prove it. That the court has no right to listen to any evidence of what alimony she might other- wise deserve, and, therefore, no right to grant any decree for it, is lucidly shown in Bamford v. Bamford.^ "The complaint in the divorce suit contained no allegations in re- gard to property." Held, p. 36: "To enable the court to act ju- dicially on the subject of property, it must appear in the complaint that the party has property, otherwise, there being nothing alleged, there is nothing to determine in respect to property, and nothing before the court on which to base a decree in this particular. Jf nothing is stated concerning property^ it can hardly be deemed a case coftcerning it. . . . The contrary construction would require the court to decree con- cerning that which does not exist. The plaintiff has not acquired a legal or equitable right to the property by the decree of divorce [/. e., the decree is a nullity]. The court may first pass upon the question of granting or denying the divorce, and afterwards, in the same suit, in- vestigate and determine the issue concerning property. . . . The plain- tiff had a right in her complaint to make an exhibit of her husband's pecuniary condition in order to lay a foundation for alimony. " ^ The decree for money in a divorce suit may be likened to the depart from this salutary rule, we cannot foresee the inconvenience which might arise. We are ready to decree a divorce, but no other." Cassidy v. Cassidy, 63 Cal. 352. Divorce : " It is well settled that the findings in a divorce case must respond to all the material issues made by the pleadings." Porterfield v. Butler, 47 Miss. 170 : " A judgment without issue joined is a nullity. The pleading.' in a case must evoke an issue of law or of fact before a judgment can be rendered. Judgments without issues to be determined by them are nullities." Ulrich V. Ulrich, 4 Pa. County Ct. 133. Divorce : " Respondent cannot even be com- pelled to pay costs in divorce when there is no allegation that he was able to pay and he denied his ability." 1 4 Or. 30. 2 Spoor V. Coen, 44 O. St. 502 : " To bring a cause before a court competent to adjudi- cate upon it, it is not only necessary that the parties be cited or summoned in the man- ner required by the law of procedure, but a case must be made or stated, affecting the party against whom relief is asked. A judgment rendered where no case has been stated is as much a judgment upon a case coram nonjudice, whatever may be the juris- diction of the court rendering it, as a judgment upon a case, however perfectly stated, before a court not clothed with jurisdiction to hear and determine it." Milner v. Shipley, 94 Mo. 109 : " The court had no jurisdiction to render a judgment against property different from that described in the petition. . . . The judgment is therefore void and open to collateral attack."