Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-01-06
SUPREME COURT DECISION
CONTINUED fom Page 2.)


house in Hawthorne was the seperate
property Of the defendant. that the
piano and household furniture was
community property, that the plaintiff
was a fit and proper person to have
the care and control of the children.
that she and the children be allowed
the exclusive possession of the house
and lot so long as she remained their
custodian. AS both parties were be-
fore the court these provisions in the
modified decree are not limited or
controlled by the statute combining
the relief to the prayer OF the COM
plant when the defendant fails to
appear.
Section 5O4 of the Compiled Laws
provides that the Court may, upon
good cause shown, change the custody
Of the children. The decisions are not
uniform as to whether provisions for
alimony can be modified in the alb
sense of authorization by statute with
out reservation in the decree. but it
has generally been held that modifica-
ton regarding alimony or the custody
Of children can only be made upon
uOIlCee anu SOOu CduoC SuoWu, al
ing after the rendition of the judg
ment, such as change in the condi-
ton, circumstances, character CT con-
duct Of the parents or in the needs of
the child. In this connection it is
sufficient to say that this is not
proceeding OF that kind The motion
to modify the decree is based ON
Section 6S of our Practice Act. which
directs that, upon affidavit showing
good cause, and after notice to the
adverse party. and upon such terms
as r"y be just the court may relieve
a p2rty from judgment or order taken
against him through his mistake, in
advertence or excusable neglect It
should be noted that the court Boy
set aside such judgment or order, but
the word modified does not appear
She testified that he agreed to allow
her to retain the children. if she Sc
cured decree giving them to him.
Without apparent contradiction the
evidence indicated that he intended
to oppose her action for divorce by
answer and evidence tending to show
that she had been guilty Of conduct
"hiCH Woulu ChIitic W d 0lSSOltl-
ton of the marriage and that to avoid
publicity. and possibly disgrace, he
consented to have her secure the d.
vOrce on condition that he be awarded
the custody of the children, and al
lowed to retain the property He was
lulled into making default by COM
plant which asked for a dissolution
OF the marriage, and that he be given
the control and care of the children,
and which did not demand property or
alimony. BY hc- petition the plain
tiR did not ask tat the whole decree
or that part of it dissolving the mar
riage be set aside, but retaining that
portion which was favorable to her
she secured the order of the court re
versing the provisions favorable to
, him. II this order were permitted to
stand he would be deprived not only
OF the children. but Of his opportunity
to defend the action by answer and
trial before court and jury.
He surrendered this right on condi-
tfon that he be awarded the custody
OF the children of which this order
would deprive him. II she was not
satisfied with the Judgment which bv
agreement she secured against him
by default, by having the children
awarded to him, and showed good
cause for being relieved from it, il an,
part OF it was to be set aside. in JUS
t1ce to him and under the language of
Sec. 6S OF the Practice Act the mo-
ton and order ought not to have Gov
cred less than the vacation Of the
whole judgment. and the restoration
to him OF the right to defend the suit.
For the reasons indicated concur IN
the Judgment reversing the orders
mentioned.
Talbot J.