On July 1, 1947, the husband James Rogers commenced this action against his wife Myrtle A. Rogers in the district court of the second judicial district for the state of Montana, in and for the county of Silver Bow, wherein the cause was tried.
The complaint comprises five paragraphs and a prayer. Paragraphs I, II and V set forth a cause of action for divorce grounded upon grievous mental suffering alleged to have been *Page 64 persisted in and inflicted upon the husband for more than one year preceding the commencement of the action. The decree grants the husband a divorce on the grounds of mental cruelty and his evidence on such issue, if believed, is sufficient to sustain such portion of the decree. From that portion of the judgment which dissolves the marriage neither party has appealed, so it must be presumed that both are satisfied therewith.
In addition to pleading a cause of action for divorce the plaintiff husband has attempted to plead and commingle in his complaint various divergent causes against the wife without separately stating or numbering said causes and in violation of the rules and principles providing that to be so united they must belong to one only of the enumerated classes and that they be such as a district court is empowered to hear and determine under the statutes governing divorce actions. The divergent causes and classes of actions attempted to be pleaded herein are set forth in the third, fourth and fifth paragraphs of the complaint. Omitting therefrom the allegations setting forth the cause for divorce not pertinent on this appeal for the reasons stated, the complaint states:
"Complaint "Comes now the Plaintiff and for cause of action alleges:
"I. That on the 7th day of December, 1932, in Garnerville, Nevada, the Plaintiff, James Rogers, and the defendant, Myrtle A. Rogers, intermarried * * *
"III. That plaintiff prior to said marriage and subsequent thereto acquired and owned as his separate property a bankaccount 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 of the reasonable value of $3,000.00 and more particularly described as: The East Half of the Northwest Quarter of the Northeast Quarter of the Southwest Quarter of Section 12, Township 2 South, Range 6 West M.P.M. less R/W to the State of Montana for Highway containing 6.57 acres. *Page 65
"IV. That plaintiff, having trust and confidence, in saiddefendant allowed and permitted the record title to saidpersonalty and realty to be in the name of the defendantalthough said defendant had and has no interest in and to saidproperty or any part thereof.
"V. * * * That during the latter part of August, 1946, thesaid defendant, without any cause or reason therefor; left the home occupied by the parties, withdrew from the bank theaforesaid bank account and all thereof, and took with her with aforesaid bonds and stocks, all of which was against the willand without the consent of the plaintiff * * *.
"Wherefore, plaintiff prays judgment:
"1. That the bonds of matrimony heretofore and now existing between plaintiff and defendant be dissolved and that plaintiff be granted a decree of absolute divorce from said defendant.
"2. That it be ordered, adjudged and decreed that plaintiffis the owner of the personalty and realty herein described andeach and every part thereof and the defendant be ordered toexecute and deliver instruments to plaintiff vesting the titlethereof in said plaintiff.
"3. For such other and further relief as to the Court may seem meet and equitable in the premises." (Emphasis supplied.)
Defendant's answer specifically denies and places in issue each of the allegations of the third, fourth and fifth paragraphs, supra, of the above complaint.
Action to Recover Real Property. In the third and fourth paragraphs of his complaint for divorce plaintiff assumed to unite and plead a cause to recover specific real property situate in Madison county, Montana, being of the class of actions designated in subdivision 2 of section 9130, R.C.M. 1935. There plaintiff seeks to have it "decreed that plaintiff is the owner of the * * * realty * * * described" and that defendant be "ordered to execute and deliver instruments to plaintiff vesting the title thereof in said plaintiff."
The district court of Silver Bow county had and has no jurisdiction whatever to hear or determine the pretended causes involving *Page 66 the title to the described real property all situate wholly in Madison county. The Constitution of Montana requires that such actions "shall be commenced in the county in which the real property * * * is situated." Section 11 of Article VIII, Constitution of Montana. These provisions of the Constitution "are mandatory and prohibitory." Section 29, Article III, Constitution of Montana. To like effect is section 9093, R.C.M. 1935.
Despite its utter lack of jurisdiction so to do, the district court of Silver Bow county, nevertheless, assumed to make findings of fact respecting the land situate in Madison county and found:
"6. That at the time the defendant left plaintiff as aforesaid, plaintiff owned absolutely and in his own right * * * certain real estate situate near Silver Star, Madison county, State of Montana; that the defendant claims an interest in and to said property and the whole thereof; but said claim is wholly without right;" and "7. That the record title to said * * * realty is in the name of the defendant, and was so placed in said defendant by said plaintiff because of his trust and confidence in her; that although the defendant was requested so to do, she refused and refuses to transfer and convey said property or any part thereof * * *"
Being without jurisdiction to determine such facts the court's findings numbered 6 and 7, supra, are coram non judice and void.
Whether an action was commenced in the wrong county goes to the jurisdiction of the court to entertain the particular cause of action which question may be raised for the first time on appeal to the supreme court. Good Roads Machinery Co. v. Broadwater County, 94 Mont. 68, 70, 20 P.2d 834.
Action to Recover Stocks and Bonds. Also in the third and fourth paragraphs, supra, plaintiff assumed to unite and commingle a cause to recover specific personal property, to-wit: "certain stocks and bonds" being of the class of actions named in subdivision 3 of section 9130, R.C.M. 1935.
In its decree the trial court assumed to quiet title in the plaintiff *Page 67 to certain shares of corporate stocks and ordered defendant "to transfer and convey the same and all thereof to said plaintiff." While the cause is improperly united, yet no actual prejudice results from the order to transfer the certificates for the stocks for at the trial defendant admitted they belonged to plaintiff, and in open court agreed, that when produced, she would endorse and turn them over to him.
Action on "Bank Account." Also in the third and fourth paragraphs of his complaint plaintiff attempted to plead a purported cause of action attempting to show a right in him to compel the defendant wife to assign and transfer to him a bank account which plaintiff affirmatively pleads he had "allowed and permitted * * * to be in the name of the defendant" wife, being of the class of actions enumerated in subdivision 3 of section 9130, R.C.M. 1935. The complaint further affirmatively shows that long before this suit was commenced all the credit represented by said bank account had been exhausted and that all the funds had been withdrawn. Thus does the complaint affirmatively show on its face that when this suit was instituted there was no "bank account." The account had long since been closed. The entire credit was gone.
The only specific relief requested by plaintiff with respect to the non-existent "bank account" was that "it be ordered, adjudged and decreed that plaintiff is the owner of the personalty * * * herein described * * * and the defendant be ordered to execute and deliver instruments to plaintiff vesting title thereof in said plaintiff."
Under such facts it would have been but an idle gesture for the trial court to have directed defendant to execute an assignment or transfer of the non-existent "bank account," as was prayed for in the complaint. There remained nothing in the bank that could be transferred.
The complaint makes no demand for a money judgment against the defendant wife in any sum nor does it state facts sufficient to disclose a right in the plaintiff husband to recover a *Page 68 money judgment from the defendant wife. Notwithstanding, the judgment entered adjudges:
"2. That James Rogers, the plaintiff * * * do have and recover of and from Myrtle A. Rogers, the defendant * * * the sum of two thousand forty and no one hundredths ($2,040.00) dollars with interest at the rate of 6 percent per annum from the date hereof until paid.
From this portion of the judgment the defendant has appealed.
On what possible theory has plaintiff shown a right in himself to recover in his divorce action a money judgment against his wife in the lump sum of $2,040.00 or any other amount?
It is well settled that, in the absence of a statute providing therefor, a husband cannot lawfully be awarded alimony in a suit for divorce. The statutes of Montana do not empower a court to award alimony to a husband either in installments or in gross. Clearly the money judgment against the wife may not be sustained on the theory that it constitutes a lump-sum alimony award to the husband.
The money judgment may not be sustained on the theory of a "property settlement" due the husband on dissolution of the marriage. Community property is unknown to the law of Montana and there is no evidence that the bank account ever stood to the credit or in the name of the husband either individually or otherwise or that the husband at any time ever had authority to write checks or draw on said bank account, same having been at all times in the name of the wife alone. Compare: Stefonick v. Stefonick, 118 Mont. 486, 167 P.2d 848, 164 A.L.R. 1211; Rufenach v. Rufenach, 120 Mont. 351, 185 P.2d 293; Emery v. Emery, 122 Mont. 201, 200 P.2d 251; Shaw v. Shaw, 122 Mont. 593,208 P.2d 514.
The money judgment against the wife may not be sustained on the theory that the allegations of plaintiff's complaint show a right in him to recover under a common-law action for money had and received. As stated in Truro v. Passmore, 38 Mont. 544, 549,100 P. 966, 968: "Suffice it to say that there is in this *Page 69 state no action for money had and received, as such; and there is no common law in any case where the law is declared by the Code. [10703, R.C.M.] The common counts have been superseded by our system of code pleading. A complaint, under this latter system,must contain a statement of the facts constituting the cause ofaction in ordinary and concise language. [9129, R.C.M.] If the phraseology of any common count is adequate in the particular case to bring the pleader within the code rule, then his pleading is sufficient; otherwise it is not." (Emphasis supplied.) Also see: Moore Bros. Sheep Co. v. Lehfeldt, 57 Mont. 227,187 P. 910.
In the third paragraph of his complaint the husband alleges that he "acquired and owned as his separate property a bank account in the Metals Bank and Trust Company of Butte, Montana of the value of $2,000.00" but the record fails to show any evidence that the bank account ever stood to the credit or in the name of the husband or that he was ever authorized to check or draw on it.
The husband testified: "I also had money amounting to $2,040.00 in the Metals Bank and Trust Company in Butte, Montana. * * * My wife had no interest in any of the property; all the property I owned except two old automobiles, was at the suggestion of my wife placed in her name with the understanding that she would have it in the event of my death, and that she would have no present interest and would upon request return all of it to me. * * * I understood she was to return the propertyto me if anything ever happened or if I should request her, to which she agreed."
The wife testified: "My husband conveyed the property at Five Mile to me. I did not agree to return it. I received the money on the sale of this [Five Mile] property and placed this money in Metals Bank and Trust Company of Butte, Montana, in my own name.There was no understanding between my husband and me that I wasto transfer any of the property to him. I had money when I married Rogers. * * * I was sixteen years old when I married him. * * * My husband bought me several *Page 70 fur coats and diamond rings. * * * The ranch at Silver Star had formerly belonged to my stepmother and the ranch was purchased with the proceeds from the [Five Mile] condemnation proceedings. My husband took charge of the condemnation proceedings. At that time I was attending the University of Montana. * * * I * * * have spent almost all of the $2,040.00 that was in the Metals Bank for my own purposes. * * * Most of the money in the bank was earned or inherited by Mr. Rogers."
The trial was had at Butte where the bank is located and had the wife not placed this money in the bank and opened the bank account in her own name as she testified it would have been a simple matter to ascertain the true facts by calling upon the bank to produce its books and records showing the transactions. Not having done this or introduced any other evidence disputing or contradicting the wife's testimony that the bank account stood in her "own name" such testimony must be given considerable weight, especially in light of the averments of paragraph IV of the complaint wherein the husband alleged that "having trust and confidence in" his wife he "allowed and permitted the record title to said personalty * * * to be in the name of the defendant although said defendant had and has no interest in or to saidproperty or any part thereof." (Emphasis supplied.) The italicized portion of the averment above quoted is but a bald legal conclusion which raises no issue. Poorman v. Mills, 35 Cal. 118, 95 Am. Dec. 90; Allen Clark Co. v. Francovich, 42 Nev. 321,176 P. 259; Giesy v. Aurora State Bank, 122 Or. 1,255 P. 467, rehearing denied 122 Or. 1, 256 P. 763; 4 Bancroft's Code Pleading, sec. 1960, p. 3351; Crenshaw v. Crenshaw, 120 Mont. 100,182 P.2d 477, 486. Compare: Moore Bros. Sheep Co. v. Lehfeldt, supra.
The undisputed evidence is: That the husband while owner of the fee, conveyed and transferred to his wife the real estate known as the Five Mile property; that while title was in the wife condemnation proceedings were brought resulting in a sale and transfer of the property for airport purposes; that the money consideration received for such transfer was delivered to the *Page 71 wife in whose name alone the record title then stood; that the wife deposited this money so received by her from the sale of the property in the bank to her credit and in her name alone; that thereafter a part of the money so deposited to the wife's credit was employed to acquire the ranch in Madison county, Montana, and that the balance remained in the bank to the wife's credit until October 1946 when, upon the withdrawal of the funds, the bank account was closed.
The husband had the right to do with his property as he pleased. He voluntarily transferred and conveyed his Five Mile property to his wife. She accepted the deed of conveyance from him and caused it to be placed of record. Subsequently she conveyed the property, accepted the money paid therefor and deposited it in a bank account standing in her name alone. This she did with full knowledge of her husband, who affirmatively pleaded he "allowed and permitted the record title to" said bank account "to be in the name of the defendant" wife.
"Record title passed by the transfer, and, presumptively, actual title passed." Cook v. Rigney, 113 Mont. 198, 204,126 P.2d 325, 328. So it was as to money which the husband voluntarily handed over to his wife without consideration. Such transfer of personal property so voluntarily made without consideration constitutes a gift. Section 6882, R.C.M. 1935. The delivery of the property to the wife under such circumstances passed title to her. The credit at the bank which she acquired with the money there deposited became and was her credit. The placing of "the record title to said personalty" in the wife's name proclaimed to the bank, as well as to the world, that the account and credit so created and standing in the name of the donee wife was her property. She alone had the right thereto. She alone was privileged to draw on the account. This she could do without first obtaining the husband's consent. That a portion of the money with which she acquired the credit came from the sale of property which at one time belonged to the husband or from money which he had earned or inherited and thereafter voluntarily delivered to her without consideration and *Page 72 as a gift did not impair the wife's title to the credit. Compare: Fender v. Foust, 82 Mont. 73, 87, 88, 265 P. 15. Kranjcec v. Belinak, infra.
The legal effect of the transaction of the deposit of the money by the wife and the opening of the bank account in her name alone is that it established the relation of creditor and debtor between the wife and the bank. 5 Michie, Banks and Banking, sec. 79, p. 168; Matthews v. Hanson, 145 Va. 614, 618, 134 S.E. 568; Brown v. Daugherty, C.C., 120 F. 526, 631; First National Bank of Portland v. Connolly, 172 Or. 434, 138 P.2d 613, 626,143 P.2d 243.
The prima facie presumption is that a fund deposited in a bank belongs to the person in whose name it has been deposited and the burden of proof is upon another claiming such fund. 5 Michie, Banks and Banking, sec. 368b, p. 710; Egbert v. Payne, 99 Pa. 239,244; O'Brien v. Radford, 113 Pa. Super. 88, 91, 171 A. 296; Johnson v. Commercial National Bank, La. App., 175 So. 852; Detroit Savings Bank v. Haines, 128 Mich. 38, 42, 87 N.W. 66; United States Fidelity Guaranty Co. v. First National Bank of Fort Worth, Tex. Civ. App., 1935, 81 S.W.2d 213; First National Bank of Portland v. Connolly, supra.
It is the rule in this jurisdiction that a transfer of title to property from one spouse to the other is presumed to be a gift. Kranjcec v. Belinak, 114 Mont. 26, 34, 132 P.2d 150; Bingham v. National Bank of Montana, 105 Mont. 159, 166, 72 P.2d 90, 113 A.L.R. 315; Lewis v. Lewis, 109 Mont. 42, 49,94 P.2d 211; Lewis v. Bowman, 113 Mont. 68, 77,121 P.2d 162; Humbird v. Arnet, 99 Mont. 499, 509, 44 P.2d 756. "A gift is a transfer of personal property, made voluntarily, and without consideration." Section 6882, R.C.M. 1935.
The law presumes that an advance of money made by one spouse to the other is a gift, a gratuity; no contractual relationship is presumed and no obligation arises therefrom. The allegation in the complaint that the wife withdrew all the funds from the bank account standing in her name and took or spent same without the consent of her husband does not tend to imply that *Page 73 the parties intended that any contract liability would arise. Hence the husband may not recover the money advanced by him which he knowingly "allowed and permitted" his wife to deposit in her own name and to her credit alone. See: Bast v. Bast, 68 Mont. 69,76, 217 P. 345; Shaw v. Shaw, supra; Kranjcec v. Belinak, supra.
In Kranjcec v. Belinak, supra, a wife withdrew money from the joint bank account of herself and husband with which she bought certain property and this court, upon the authority of Ludwig v. Montana Bank Trust Co., 109 Mont. 477, 98 P.2d 377, 379, and the cases therein cited, there held that the wife "had the right to withdraw it and use it as she might choose." [114 Mont. 26,132 P.2d 153.]
While the presumption that the transaction was a gift may be rebutted by competent evidence, this court has held that to overcome such presumption the evidence "must be clear, convincing * * * and practically free from doubt," [113 Mont. 68, 121 P.2d 167] Lewis v. Bowman, supra; Clary v. Fleming, 60 Mont. 246,252, 198 P. 546, and that such presumption is not over come as a matter of law by the positive testimony of an interested witness to the contrary. McLaughlin v. Corcoran, 104 Mont. 590,597, 69 P.2d 597; Lewis v. Bowman, supra.
In Bingham v. National Bank of Montana, supra, this court said [105 Mont. 159, 72 P.2d 94]: "Where the relationship between the person advancing the money and the person taking the legal title is that of husband and wife, the presumption, rebuttable in character, is that the conveyance is made as a gift. * * *
"It is here urged that section 6785 is all-inclusive, applying to every transaction without regard to existing relationships between the parties, but this court has consistently recognized, in instances of close relationship, that the presumption of a trust, as declared by section 6785, is supplanted by the presumption of a gift. The last decision applying this latter presumption was McLaughlin v. Corcoran, 104 Mont. 590, 69 P.2d 597. These decisions have all been by a unanimous court, although *Page 74 decided by an ever-changing personnel of the court. They have been rendered over a period of some sixteen years. Eight times since the first decision declaring the presumption of a gift was rendered has the Legislature met in regular session; yet no successful attempt was made by the Legislature to change the rule as declared by this court in this respect. Hence a majority of this court is unwilling to change this established and well-settled rule of law. * * *
"Since the reason for the adoption of the majority rule does not obtain in this jurisdiction, the rule as heretofore declared by this court is more in keeping with our laws than is the majority rule, and, accordingly, we see no sufficient reason why we should now reverse the former decisions of this court and adopt a contrary view."
Even the dissenting opinion of Justice Angstman in Bingham v. National Bank, supra, concedes that the above is the established rule of law in this jurisdiction, where, as in the cause now before this court, the husband advances the money and title is taken in the name of the wife, asserting: "The majority haveannounced the correct rule where the husband advances the moneyand title is taken in the name of the wife, but the same rule does not apply where the wife furnishes her separate funds for the purchase of property taken in the name of the husband." 105 Mont. at page 182, 72 P.2d at page 101, emphasis mine.
Rufenach v. Rufenach, supra, by a unanimous court, applied the rule in actions for divorce in this jurisdiction, which rule denies to the trial court, the power to divest the title of the one spouse to specific real or personal property and to vest such title in the other.
In Stefonick v. Stefonick, supra, the plaintiff wife pleaded and her evidence established that she was [118 Mont. 486,167 P.2d 858] "ill in body and mind, * * * unable to do perform any hard work, and is not able to provide for herself the necessaries of life" because the defendant husband had "repeatedly and often threatened, beat, kicked and otherwise maltreated" and mistreated her. Because of the financial circumstances *Page 75 of the parties, the wife's ill health and physical condition resulting from the intolerable and brutal treatment so inflicted by the husband, and because of her need, the wife was granted a divorce and awarded a lump sum money judgment. On appeal, a majority of this court, with the writer hereof dissenting, set aside and vacated that portion of the decree awarding the money judgment to the wife and said: "It is well settled that in this jurisdiction alimony is in no way a property settlement, but is the provision made for the support of the wife. State ex rel. Tong v. District Court, 109 Mont. 418, 96 P.2d 918, 921." Emphasis mine.
Although concurring in Rufenach v. Rufenach, supra, and in the majority opinion in the Stefonick case, 118 Mont. 486, 167 P.2d 848, 164 A.L.R. 1211, supra, in the more recent case of Emery v. Emery, 122 Mont. 201, 200 P.2d 251, at page 267, Justice Angstman wrote: "I do not agree that the court in a divorce action has no authority to adjust the property rights of the parties. If there be compelling reason the award may be a lump sum. Stefonick v. Stefonick, 118 Mont. 486,167 P.2d 848, 164 A.L.R. 1211." Emphasis mine. The Stefonick case, supra, so cited, is not authority for a lump sum award for there the court set aside the award and denied the wife's right thereto in the face of most compelling reasons pleaded and admittedly established by abundant evidence.
In the Stefonick case, supra, a majority of this court ordered vacated the money judgment of $27,416.60 against the appellant husband while in the instant case the majority opinion ordered affirmed the money judgment of $2,040.00 against the appellant wife. Surely the same rule of law that protected Peter Stefonick in the former case should afford like protection to Myrtle Rogers in the case now before us.
On December 7, 1932, when the parties intermarried the wife Myrtle was a young girl of the age of sixteen years. Following their marriage in the state of Nevada the couple came to Butte, Montana. Both parties appear to be industrious, thrifty, wholesome persons. The husband, by occupation a miner, worked in *Page 76 the Butte mines, while Myrtle, his wife, set about completing her education by attending the Butte Business College, the Montana State University, Drake University and other educational institutions where she learned to speak a number of foreign languages and to become a secretary and newspaper reporter. For a time she was employed by the United States government and then by the Belgian embassy at Washington, D.C., where she continued with her education. While no children were born of the marriage, the couple lived together as husband and wife for about fourteen years during which time the husband courted his young wife's favor, generously assisted financially with her education and gave her money, fur coats and jewelry, — all presumed to be gifts which, under the law as applied to the record before us, the donee wife was not thereafter obligated to return or account for to her indulgent mate should she incur his displeasure.
A portion of the testimony is in direct conflict as the wife testified she did not agree to transfer the property to her husband and that there was no understanding between them to such effect, while the husband, an interested witness, gave positive testimony to the contrary. However, the husband's testimony, standing as it does alone, is not sufficient, as a matter of law, to overcome the presumption that the transaction was a gift, McLaughlin v. Corcoran, supra; Lewis v. Bowman, supra, nor can it be said that his testimony is clear, convincing and practically free from doubt as is required under this court's decisions in the cases of Lewis v. Bowman, supra, and Clary v. Fleming, supra.
Foster v. Berrier, 39 Colo. 398, 89 P. 787, holds that where a husband furnished the consideration and caused the title to property to be placed in the name of his wife in order that she might have a home "in case anything should happen to him" that no trust resulted but the transaction amounted to a gift. Therein the court said: "In this case the plaintiff's own testimony is that he cause the title to this property to be placed in the name of his wife in order that she might have a home in case *Page 77 anything should happen to him. In another place in the testimony he says that it was intended as a home for himself and wife. No other conclusion can be drawn from this testimony than that it was not intended by the plaintiff that his wife should hold this property in trust for him, but that she should hold it in her own right, in order that she might have a home in case he should die, or, as he says, in case `anything should happen' to him. This is not only a valid gift, but such gifts are encouraged by the law, in order to enable a husband to provide for his wife in case misfortune should overtake him. And it has been the policy of the courts to uphold conveyances to the wife by the husband upon grounds of public policy. In the case of Thomas v. Mackey,3 Colo. 390, it was said: `A voluntary conveyance from husband to wife is not per se fraudulent. In obedience to the dictates of humanity and the voice of reason, the husband may, and ought, in prosperous times, if it can be done without imperiling his creditors, to put his wife beyond the reach of want, when old age shall overtake her, and when he, perchance, through some misfortune in business may have lost all his property.' * * * This cannot be regarded as creating a trust, and we must hold that when Berrier caused the property to be conveyed to his wife that it was intended by him as a gift to her, and that she had absolute control and dominion over it."
In 2 Bogert on Trusts and Trustees, sec. 459, pages 1391-1393, it is said: "The court takes cognizance of the legal and moral duty of a husband to support his wife, of the high degree of love and affection usually running from husband to wife, recognizes that gifts from husbands to wives are well known to be of common occurrence, and also realizes that husbands often give part or all of their property to their wives at the time of, or shortly preceding, death. It is human experience of a well-established character that voluntary transfers from husbands to wives are frequently made, either to provide the wives with the means of subsistence, or out of pure generosity of the husband, or by way of distribution of an estate in anticipation of death. An unexplained direct or indirect transfer may, therefore, be naturally *Page 78 attributed to a gift motive. The court probably also takes into consideration that the husband is usually better qualified to manage property than the wife, and that there is a consequent unlikelihood of a desire on his part to use his wife as a trustee or manager of his property. In explaining this presumption of gift from husband to wife, some opinions stress the duty to support, others mention the element of love and affection, and still others lay emphasis on the `advancement' notion. It is believed that the presumption is not based solely on any of these factors, but rests upon them all. Common experience shows that gifts from husband to wife are frequent for a number of different reasons."
The judgment which is the subject of this appeal is the moneyjudgment against the wife and not the decree granting the husband a divorce. Not being here concerned with the sufficiency of the allegations of the complaint to state a cause of action for divorce the question is:
Does the complaint state facts sufficient to show a right in plaintiff husband to recover the money judgment that was entered against his wife?
"Whatever may be the nature of the cause of action upon which plaintiff seeks to recover, he must allege in his complaint facts disclosing the presence of all the elements necessary to make it out." Chealey v. Purdy, 54 Mont. 489, 491, 171 P. 926, 927.
It is elementary that the complaint must support the particular judgment entered, Crenshaw v. Crenshaw, supra, and the question whether it does or not may be raised for the first time on appeal to this court. Territory ex rel. Blake v. Virginia Road Co., 2 Mont. 96, 100, 101; Parker v. Bond, 5 Mont. 1, 12, 13,1 P. 209; Foster v. Wilson, 5 Mont. 53, 57, 2 P. 310; Anderson v. Hulme, 5 Mont. 295, 5 P. 865; Quirk v. Clark, 7 Mont. 31,33, 14 P. 669; Tracy v. Harmon, 17 Mont. 465, 43 P. 500; Van Horn v. Holt, 30 Mont. 69, 71, 75 P. 680; Murray v. City of Butte, 35 Mont. 161, 88 P. 789; Badovinac *Page 79 v. Northern P. R. Co., 39 Mont. 454, 104 P. 543; Crenshaw v. Crenshaw, supra.
While certain objections to a complaint are deemed to have been waived if not first taken by motion, demurrer or answer, yet this rule has no application to the objection to the jurisdiction of the court, or to the objection that the complaint does not state facts sufficient to state a cause of action showing plaintiff to be entitled to the particular relief granted in the judgment entered. Section 9136, R.C.M. 1935; Binzel v. Viehmann,111 Mont. 6, 106 P.2d 187; Calkins v. Smith, 106 Mont. 453,78 P.2d 74.
"`Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice without them. If a party can allege one cause of action and then recover upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary.' Southwick v. First Nat. Bank, 84 N.Y. 420; Romeyn v. Sickles,108 N.Y. 650, 15 N.E. 698; 2 Thompson on Trials, secs. 2251, 2252." St. John v. Taintor, 56 Mont. 204, at page 209, 182 P. 129,131.
In order to bring into activity the power of the trial court to hear and determine the right asserted by plaintiff to recover the money judgment entered there must first be a statement in the complaint setting forth the essential ultimate facts constituting the alleged wrong for which redress in money may be had under the law. Reed v. Woodmen of the World, 94 Mont. 374, 381, 22 P.2d 819, 821.
Plaintiff's pleadings must be so framed as to entitle him to the money judgment given. The only allegations that relate to the "bank account" and upon which plaintiff must rely as tending to support the money judgment entered are those italicized in paragraphs III, IV, and V of the complaint which we have hereinbefore set out verbatim. Clearly such italicized averments are wanting in substance upon the particular issues involved on this appeal and wholly fail to state a cause of action for the recovery of a money judgment against appellant wife on any possible *Page 80 theory. Plaintiff's pleadings and the proof submitted by him both fail to sustain the money judgment. They wholly fail to disclose "facts constituting a wrong for which redress may be had under the law." Reed v. Woodmen of the World, supra. Had plaintiff's pleadings stated a cause of action for damages for the alleged conversion of his money or bank account then defendant would have been entitled to a jury trial and she should not have been denied such constitutional right by the simple device of commingling the action for damages in a suit for divorce.
Plaintiff's pleading and proof both establish a gift as defined by statute where complete title in the advancements made to the wife passed to her and the fact that the husband later attempted to construe the gift as an "Indian Gift" by stating that he expected the gift to be returned to him "if anything ever happened" does not entitle him to a money judgment for the value of the gift or gifts so made to the wife.
Plaintiff has failed to meet the burden cast upon him. His complaint failed to plead, Schlosser v. Schlosser, 62 Colo. 270,162 P. 153, and his evidence wholly failed to establish his right to the money judgment entered.
There being a complete failure of proof to sustain it, that portion of the judgment which awards the husband $2,040.00 and interest should be reversed and the cause should be remanded to the district court with directions: (1) To vacate, set aside and strike from the court's findings of fact numbered 6 and 7 all parts thereof which purport to determine the facts concerning the described real estate situate in Madison county, Montana, or which assume to determine any interest, claim or title therein over which real estate the district court of Silver Bow county had and has no jurisdiction whatever; and (2) to strike and eliminate from the judgment all that portion thereof which provides: "2. That James Rogers, the plaintiff in the above entitled action, do have and recover of and from Myrtle A. Rogers, the defendant in the above entitled action, the sum of Two thousand forty and no one-hundredths ($2,040.00) Dollars *Page 81 with interest thereon at the rate of 6 percent per annum from the date hereof until paid."