I dissent. The manner of vacating or setting aside *Page 418 judgments in this state is regulated by statute, which must be complied with in order to authorize the court to act. Our attention has not been called to any provisions of the civil practice act that authorizes the court to set aside the judgment in a case like this upon a mere motion. The case does not come within any of the provisions of section 142 of the civil practice act (section 8640, Nev. Comp. Laws 1929, section 5084, Rev. Laws 1912).
The defendant, however, based his right to maintain his motion upon the power reserved to the court in its original decree to make such further or additional orders relative to the payments for the plaintiff's support. This being so, under our divorce statute, section 27, section 9465, Nev. Comp. Laws 1929, it was the duty of the court to allow such sum for the wife's support as was just and equitable under the circumstances of the case and the surroundings of the parties.
It is held that, in the absence of fraud or collusion, an agreement or arrangement between the parties entered into before, and not for the purpose of facilitating the granting of a divorce, may be adopted by the court in granting permanent alimony, if such an agreement is just and equitable, but the court is not bound by the agreement and may disregard it, especially where it is unfair and inequitable, or the amount is inadequate. 19 C.J. p. 251, sec. 586. There is nothing in our statute giving jurisdiction to incorporate into the judgment such agreements. They are, however, sometimes included in the judgment if they appear fair, rendering it unnecessary to take proof. The parties, by their agreement, decided to submit to the court the questions of the reduction of the payments required for the wife's support, in case the defendant's gross annual income fell below that of $48,000 per year, in which event the wife agreed to accept a sum equal to one-fourth of his annual income. The court, upon motion, struck this provision from the judgment. I am of opinion that, when the defendant elected to move the court to make a new arrangement *Page 419 between the parties as to the payments for the wife's support of $1,000 per month, so as to conform to his reduced gross annual income, the court was not bound by the agreement of the parties. Under the power reserved to it in its original decree to make such further or additional orders relative to the payments as the court in the future might deem proper, its jurisdiction was limited to make such an allowance for the wife's support as was just and equitable under the circumstances of the case and the surroundings of the parties. As a result of the defendant's motion, the court assumed jurisdiction to take hold of one of the provisions of the agreement of the parties and make an order which, in my opinion, is so manifestly unjust and unfair to the plaintiff wife that it should not be sustained.
We know of no principle, and we have been cited to no authority, which authorized the court, under the facts and circumstances as disclosed by this record, to so arrange the payments for the support of the wife as to make it possible for the defendant, by deliberate intent, disinclination, or otherwise, to defeat or avoid his marital obligation of support of the plaintiff.
DUCKER, J., being unable to participate by reason of illness, the Governor designated Hon. CLARK J. GUILD, Judge of the First Judicial District, to act in his stead. *Page 420