(dissenting).
While strong sentiment urges me to concur in the result reached by the majority, I cannot agree that the objectives of sound procedure and ultimate justice are to be achieved by this holding.
The majority opinion is fortified by the doctrine that once equity takes jurisdiction it will go forward to give such relief, both legal and equitable, as may be necessary. In applying this principle to the instant case I differ from the majority by reason of my interpretation of the statute which confers property settlement jurisdiction on the lower court in divorce proceedings.
The policy argument advanced in the majority opinion regarding the statute is indeed well executed, but it appears to me that it does considerable violence to the *676cohesive qualities of the statute. Section 409, Title 16, of the District Code is a single sentence, lacing tightly together the award of a divorce decree and the division of property. This language, “* * * the court, in the same proceeding in which such decree is entered, shall have power and jurisdiction to award such property * * ought not, I think, be split apart by judicial construction. [Italics supplied]
However, I will agree that the prime question in the case is as stated by the majority. In my opinion, not only did the plaintiff’s complaint fail to set forth a claim for the relief which was granted, but moreover, the proceedings in the trial court failed utterly to provide a substantial footing for the award which followed. Reading the plaintiff’s complaint in its entirety, it seems clear that his recital regarding the furniture was directed toward a showing of the elements incident to a wrongful desertion, i.e., the grounds for the requested divorce. At no point in the pleadings did the plaintiff request or even suggest that he wanted money damages for the loss of the furniture, or a division of the accumulated rents from the realty. The majority opinion disposes of this difficulty by pointing to the Federal Rules of Civil Procedure, [Rule 54 (c)], and to the catch-all prayer, “And for -such other and further relief * * *” I cannot conclude that the liberality of the Federal Rules license this laxity of pleading in a situation such as existed before the trial court.1
As I view the rule, it was designed to free the court from arbitrary limits of relief established by the pleadings, but it does not follow from this admirable purpose that the Court is empowered to grant relief as to issues not in fact litigated by a fair engagement between the parties.
It seems evident that the parties selected the divorce action as the crucial area of litigation. Quite naturally, testimony concerning property rights might be expected as a part of the divorce proceeding. Nevertheless, when the entire theory of the case and its mode of trial were aimed at settling the divorce issue it is at least surprising, and I think here prejudicial to the defendant, for the trial court, in the absence of granting a divorce, to emerge with a judgment for the division of funds and a money judgment that can only be characterized as an award for the conversion of personalty. In view of the statute and the course taken at the trial, the defendant had every right to expect that the property issues would stand or fall with the divorce action.2
The majority states that the defendant had ample opportunity to request a jury trial of those issues properly triable to a jury. However, it appears that if she considered those issues at all during the trial she regarded them as inextricably bound to the divorce action. Can the defendant in such a state of affairs reasonably be said to have waived the right to jury trial? As it developed, the defendant probably didn't know the true nature of the litigation until it was too late to request a jury on the conversion feature.
Even though a shift in the theory of the case is permissible under the Rules, it would seem a minimum requirement that the parties be conscious of the shift prior to the time of judgment. The moment of judgment is, I think, a little late to apprise the litigants of such fundamental changes. The trial court might better have called for amended pleadings, thus, giving the parties a genuine opportunity to re-shape their presentations. It is perhaps doubtful if either party anticipated the judgment resulting from this trial.
As a parting point I mention that I regard as erroneous the District Court’s computation of the amount recoverable for the loss of the furniture. The plaintiff testified that the goods cost $1267. They were purchased between 1927 and 1936, yet the award was for $1260. This judgment could hardly be the value at the time and place of conversion.
It is perhaps interesting to note that on oral argument before this court, Counsel for appellee admitted that his pleadings standing alone would not constitute a good claim for conversion.
Observe also that the lower Court did not undertake to partition the realty in this proceeding.