February 9, 1954, Betty J. Moody filed a divorce complaint in Asotin county against her husband, Oscar H. Moody. May 18, 1954, the superior court entered a default judgment of divorce in favor of the plaintiff.
June 8, 1954, Oscar H. Moody was charged in the superior court of Asotin county with the crime of first degree murder. June 16, 1954, Mr. Moody gave notice of appeal from the judgment of divorce. His present counsel in the murder case represents him in this appeal. The prosecuting attorney of Asotin county is appearing amicus curiae under direction of the trial court on behalf of respondent. It would appear that neither party is particularly interested in the maintenance or the sanctity of the marriage relationship. Appellant is interested in having the divorce decree set aside in order that Mrs. Moody could then be prevented from testifying against him in the murder trial, while the prosecutor is interested in having the decree affirmed in order that Mrs. Moody may so testify.
*399The sole ground urged for reversal is that the complaint did not state facts sufficient to constitute a cause of action for divorce. Paragraph V alleged:
“That for some time last past, through incompatability of temperment, plaintiff has been the victim of mental cruelty inflicted on her by the defendant, which has made her home-life and wellbeing burdensome, to the point it has become impossible for her to live and cohabit with the defendant; that all of said acts were without just cause or provocation on the part of plaintiff.”
RCW 26.08.020 sets out ten statutory grounds for divorce. Subdivision (5) states:
“Cruel treatment of either party by the other, or personal indignities rendering life burdensome.”
The courts of this state are limited in granting divorces to the grounds listed in the divorce statute. Fix v. Fix, 33 Wn. (2d) 229, 204 P. (2d) 1066; Donaldson v. Donaldson, 38 Wn. (2d) 748, 231 P. (2d) 607, 25 A. L. R. (2d) 919. Incompatibility of temperament is not a ground for divorce. In Neff v. Neff, 30 Wn. (2d) 593, 192 P. (2d) 344, we said: “. . . neither incompatibility, uncongeniality, dissatisfaction, nor unhappiness constitutes grounds for divorce.”
Mental cruelty as such is not a ground for divorce.
Respondent argues that the gravamen of the complaint is cruelty. Cruel treatment may consist of actions, words, silence, neglect, or conduct. However, incompatibility of temperament cannot be the sole basis of cruel treatment. Webster’s New International Dictionary (2d. ed.) (1954) defines the word “through”:
“By means of . . .; by reason of; in consequence of; because of.”
The complaint does not allege that the defendant was guilty of cruel treatment. It alleges that the plaintiff became the victim of mental cruelty by means of, by reason of, in consequence of, because of, incompatibility of temperament. That was what caused her to be the victim of mental cruelty. Incompatibility of temperament, not cruelty, is the gravamen of the allegation. Had the defendant appeared and *400demurred to the complaint, it would have been incumbent on the trial court to sustain the demurrer. However, defendant did not appear and attack the complaint. He sat idly by and permitted a default judgment to be taken against him.
RCW 4.32.190 provides:
“If no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting always the objection that the court has no jurisdiction, or that the complaint does not state facts sufficient to constitute a cause of action, which objection can be made at any stage of the proceedings, either in the superior or supreme court.”
See, also, Rule on Appeal 43, 34A Wn. (2d) 47, as amended, ■ effective January 2, 1953.
In Hamilton v. Johnson, 137 Wash. 92, 241 Pac. 672, in discussing a prior statute identical with the above statute, we said:
“This statute has been upon the statute books substantially in its present form since the first session of the territorial legislature of 1854. See Laws of 1854, p. 139. The first of these objections, that the court has no jurisdiction, is still in full force and effect, but it neither adds to nor restricts the powers of the court. A judgment entered without jurisdiction is a nullity, and no court, whether it be the court of original or of appellate jurisdiction, will continue an action or proceeding where it is made to appear to it that it is without jurisdiction.
“The second of the provisions has been much modified and limited by subsequent statutes. Those most pertinent of these are the statutes relating to amendments of pleadings. Now a party may amend his pleadings, when attacked in the superior court, almost as á matter of course; and this court, in considering an appealed cause, is admonished to disregard all technicalities, and ‘consider all amendments which could have been made as made.’ It is, of course, at once apparent that, if the provision of the statute under consideration is to be given its apparent literal meaning— if, in other words, a complaint may be searched for any sort of defect at any stage of the proceedings—the benefit of the provision of these amendatory statutes will, in many instances, be denied the litigant. It is undoubtedly still the rule that, if the complaint shows upon its face that the plain*401tiff has no cause of action and under no circumstances can have á cause of action, the court will stay the action at the earliest time the matter is brought to its attention. But technical defects, or defects that can be cured by amendment, can avail the objector only in the case he raises the objection either by motion or demurrer before he enters upon the trial. These rules have been repeatedly announced by this court.”
See, also, Coats v. West Coast Fire & Marine Ins. Co., 4 Wash. 375, 30 Pac. 404, 850; Jacobson v. Aberdeen Packing Co., 26 Wash. 175, 66 Pac. 419; Stewart v. Beghtel, 38 Wn. (2d) 870, 234 P. (2d) 484, and cases cited therein. In the latter case, we said:
“The question whether a complaint states a cause of action may be raised on appeal, but unless the record shows that such question was passed upon by the trial court we are not inclined to hold a complaint insufficient unless it appears from such complaint no cause of action can be stated by amendment or otherwise, or it shows on its face plaintiff is not entitled to any relief.”
None of the above cases involved a default judgment. They all went to trial, and the objections to the complaints could have been raised by demurrer. In State ex rel. First Nat. Bank v. Hastings, 120 Wash. 283, 306, 207 Pac. 23, we said:
“It is elementary law that a default judgment cannot award any relief beyond that which the facts alleged in the complaint in the action show the plaintiff legally entitled to. This also means, of course, that if a complaint wholly fails to state facts legally entitling the plaintiff to any recovery, or states facts affirmatively showing that the plaintiff has no right of recovery, as those complaints did, a default judgment rendered thereon is void, just as such a default judgment would be void in so far as it awarded relief beyond that which the allegations of the complaint show the plaintiff legally entitled to.”
In State ex rel. Summerfield v. Tyler, 14 Wash. 495, 45 Pac. 31, we said:
“It is familiar law that a judgment rendered in an action in which a court has jurisdiction of the person upon a complaint which does not state a cause of action is not void but *402simply erroneous, and it is upon this principle that the contention of the appellant, that the judgment in question is not void, is founded. But, in our opinion, if the county was not subject to garnishee process, the complaint in the action in which the judgment in question was rendered not only failed to state a cause of action, but affirmatively showed that no judgment could be rendered thereon against the county.”
It was intimated in the Hastings case that the first sentence in the above statement was intended to be applicable only to complaints subject to demurrer in actions resulting in judgments other than by default. With this we cannot agree. We can see no valid reason for making a distinction between situations where a defendant answers and goes to trial and does not demur to a complaint, and where he sits idly by and permits a judgment by default, based on a demurrable complaint. In either situation, he waives his right to attack the complaint for the first time in an appeal to this court. Of course, as the above cases point out, there is no waiver if the complaint shows on its face that the plaintiff has no cause of action and under no circumstances can have a cause of action. The complaint in the instant case does not show on its face that the plaintiff is not entitled to any relief. Appellant has waived his right to attack the complaint for the first time in this court.
There is another reason why the judgment should be affirmed. We held in Roche v. McDonald, 136 Wash. 322, 239 Pac. 1015, 44 A. L. R. 444, that a default judgment, rested solely upon the allegations of a complaint so deficient in substance as to conclusively negative the existence of a cause of action at the time of its rendition, is void and can be attacked at any time. However, in Aid v. Bowerman, 132 Wash. 319, 232 Pac. 297, we said this:
“We do not fail to recognize the rule invoked by counsel for Mrs. Bowerman that a default judgment cannot lawfully award relief in excess of the cause of action set up in the complaint, as has been held by this court in harmony with the rule generally prevailing in other jurisdictions. Bank of California v. Dyer, 14 Wash. 279, 44 Pac. 534; Anderson v. Burgoyne, 60 Wash. 511, 111 Pac. 777; Bates v. Glaser, *403130 Wash. 328, 227 Pac. 15; 15 R. C. L. 605. But our present inquiry must also proceed in the light of the equally well-recognized rule that, after the rendering of final judgment in a case, in the absence of any attack upon the complaint for want of sufficient statement of facts constituting a cause of action, which situation is, of course, presented upon default, the complaint will be most liberally construed as stating a cause of action warranting the granting of the relief prayed for.”
As we have already pointed out, the complaint in the instant case was demurrable. However, we cannot say that it was so deficient in substance as to conclusively negative the existence of a cause of action. Respondent, in her allegation, skirted around subdivision (5) of the divorce act. She prayed for a divorce and the custody of the minor child of the parties. Appellant did not contest. He permitted her to obtain a default judgment of divorce. Under those circumstances, “the complaint will be most liberally construed as stating a cause of action warranting the granting of the relief prayed for.”
The judgment is affirmed.
Hamley, C. J., Donworth, and Ott, JJ., concur.