By the Court,
Belknap, C. J.:In an action for divorce uppn the ground of extreme cruelty, brought by the wife, the husband defaulted. Proofs were taken, and a decree of divorce entered dissolving the marriage and awarding the custody of the children to the husband in accordance with the prayer of the complaint. Afterwards, and upon the 8th day of February last, upon notice to reform and modify the judgment and decree upon the ground of mistake, inadvertence, surprise, and excusable neglect, and for fraud and deceit practiced upon the wife, the court amended the decree by awarding her the custody of the children, requiring the husband to pay her $50 per month for their and her support, and allowing her to remain in a dwelling house in the town of Hawthorne belonging to the separate estate of the husband while she remains the custodian. The appeal is from this amended judgment.
The civil practice act provides that the relief granted to the plaintiff, if there be no answer, shall not exceed that which he shall have demanded in his complaint. (Section 3245, Cutting’s Comp. Laws.) The allegations of the complaint in effect are that the husband has been guilty of extreme cruelty; that there is no community property, nor any separate property belonging to the wife; that there are children, and facts showing that the husband is able to maintain them, concluding with a prayer for judgment of divorce, that the husband be awarded the custody of the children, *124and for such other and further relief as may seem just and equitable. Under the provisions of the above statute, the husband not having answered, the wife was entitled to a decree of divorce, and the husband to the custody of the children, in compliance with the express prayer of the complaint. This is the extent of the power that the court could exercise.
The portion of the prayer containing the words "for such other and further relief as may seem just and equitable” cannot warrant a judgment inconsistent with the theory and allegations of the complaint.
The amended judgment is reversed, and cause remanded.
Fitzgerald, J.: I concur.