McCarran, C. J., concurring

whether by a prosecuting officer or a private citizen, so here, under the provisions of the statute (Rev. Laws, 2851-2854), it is by individual complaint that the special proceeding is instituted to remove from office.

In the matter at bar we have a complaint in writing, verified by the oath of a complainant, not for the purpose of instituting a prosecution, for removal from office is in no sense a prosecution for crime, but to institute a special inquiry provided for by statute to be conducted by a designated authority. One of two results can follow-not conviction of crime, not deprivation of property-removal from office, or dismissal of the pro

ceedings.

Much of the argument of counsel would be most convincing were we dealing with a law that contemplated criminal proceedings, or a complaint instituting a criminal prosecution. The recent case of Ex Parte Clark, 24 Cal. App. 389, 141 Pac. 831, cited by counsel for petitioners, receives my unqualified concurrence. In Kilburn et al. v. Law, 111 Cal. 237, 43 Pac. 615, cited in Ex Parte Clark, supra, the court held that the proceedings to remove the bank examiners were intended by the legislature to be in the nature of a criminal prosecution. There the court laid as the major premise of the decision that the statute providing for the removal from office of the bank examiners was a proceeding for the punishment of an offense in its nature criminal. This conclusive assertion, which I deem wholly inapplicable to our procedure for removal from office (Rev. Laws, 2851-2854), furnishes the turning-point for the whole question as it is dealt with by the California courts. If by our removal statute here in question criminal proceedings were instituted, or if a judgment of conviction of crime were entailed, then the conclusions of the California courts in the many cases referred to would be most applicable.

Petitioners' counsel dwells on the action of the grand jury as such was disclosed by the testimony taken here. In this respect he contends that it was the duty of that

McCarran, C. J., concurring

body, after its investigation, to file accusations against these defendants. Indeed, it is declared by most eminent authority that the purpose for which a grand jury is granted such latitude in inquisitorial matters is in order that it may find indictments against all public offenders, and when instead of returning an indictment after inquiry it merely expresses its views on the existence of crime, declaratively connecting persons therewith, it exceeds its authority. (12 R. C. L. 1035.) The grand jury of Elko County is not before this court; I unhesitatingly subscribe to the doctrine as enunciated in Ruling Case Law; but whether or not the grand jury has exceeded its authority in acting as it did in this case is beyond the scope of our inquiry. If the grand jury of Elko County had filed this complaint, or if J. H. Cazier had filed the complaint as foreman of the grand jury rather than as an individual, then the instrument would constitute an accusation, and proceedings under sections 2851-2854, Revised Laws, could not follow. Counsel contends that the grand jury could only act through its foreman. That fact may be conceded. But in this instance it does not appear that the grand jury even attempted to act. It was Cazier, as an individual, who acted in the way of filing these complaints.

The statute which gives rise to this proceeding is one for the removal of certain officers. It is a part of our law, made so by legislative will. The whole procedure is denominated as being summary; hence it precludes the right to jury trial. Into the hands of the district judge this statute lays one of the most sacred duties, that of removing an individual from the enjoyment of public position of trust and honor. The law, in my judgment, contains nothing which recommends itself to the spirit of democracy. It partakes of none of the progressive inspiration which gave rise to the historic scene at Runnymede. It is an extreme and extraordinary measure, intended only for extreme and extraordinary occasions. It is fraught with seriousness and a demand for extreme caution both from the standpoint of him who prefers the

Argument for Appellant

charge and him who listens and pronounces judgment. On both it places that high degree of responsibility which is always attendant when the reputation and good name of men are in the balance. It clothes the district judge with a responsibility sacred and potential, and exacts from that officer the highest degree of unbiased judgment, in the formation of which it appears to me proof of the accusations should attain the dignity of exceeding a reasonable doubt.

[No. 2321]

MARGARET WADE, APPELLANT, v. BEN WADE, EMMA JONES, ALBERT WADE, AND J. O. SESSIONS, AS ADMINISTRATOR OF THE ESTATE OF JAMES WADE, DECEASED, RESPONDENTS.

[173 Pac. 553]

1. DIVORCE-SUITS TO SET ASIDE DECREE-COMPLAINT-SUFFICIENCY. In a suit to set aside a divorce decree, a complaint alleging that the decree was void, because plaintiff therein was not a bona-fide resident of the county wherein the decree was granted, was insufficient, since under Stats. 1915, c. 28, relating to jurisdiction of divorce actions, jurisdiction might have been obtained on another ground than that of the residence of the plaintiff, and it was not alleged that jurisdiction was not dependent on such other grounds.

2. DIVORCE SUITS TO SET ASIDE DECREE-COMPLAINT-SUFFICIENCY. In a suit to set aside a decree of divorce, on the ground that it was obtained by a conspiracy between plaintiff's husband and her attorney, a complaint, alleging such conspiracy by way of conclusion merely, and failing to set out facts showing that by reason of such conspiracy the plaintiff was prevented from making her defense, is insufficient.

APPEAL from Second Judicial District Court, Washoe County; R. C. Stoddard, Judge.

Suit by Margaret Wade against Ben Wade and others, to set aside a divorce decree. From a decree for defendants, plaintiff appeals. Affirmed.

George Springmeyer, for Appellant:

The complaint in the action states facts sufficient to constitute a cause of action. A good cause of action is stated where it is alleged that the attorney for plaintiff,

Argument for Respondents

in collusion and conspiracy with the attorney for the defendant, fraudulently agreed to let judgment go against the plaintiff by consent, as the court did not have jurisdiction. (Chadron Bank v. Anderson, 48 Pac. 197.) "Under the allegations, appellants may not have shown proper diligence in failing to discover the fraud in two years, but it sufficiently appears that they were not chargeable with notice of the acts of their attorneys in time to have applied for a new trial at the term the judgment was rendered." (Watson v. Texas R. Co., 73 S. W. 830.) "Where an attorney, in whom trust and confidence are reposed by a client, misleads the client by false statements, or by fraudulent concealment of material matters, the transaction will be annulled." (McLeod v. Applegate, 26 N. E. 830.)

H. D. Danforth, for Respondents:

The only question before this court is whether or not the complaint in the case states facts sufficient to constitute a cause of action. The complaint falls far short of stating such facts. The first alleged cause of action fails entirely to show a lack of jurisdiction in the lower court to hear and determine the divorce suit in question, and therefore entirely fails to state facts sufficient to constitute a cause of action. (Rev. Laws, 5838; Tiedemann v. Tiedemann, 36 Nev. 494, 137 Pac. 824.)

Even if it should be held that the first alleged cause of action is sufficiently stated as to the matter of jurisdiction, it must be alleged also that a meritorious defense exists to the action for divorce, and that the decree of divorce attacked is groundless or unjust. (23 Cyc. 994, 1031-1033.)

As a fundamental and elementary principle of law, in cases of this kind, and as stated in Ency. Pl. & Pr., vol. 2, p. 1192: "The bill must allege facts which constitute a legal defense to the original cause of action, and one of such a nature that it would be likely to change the result upon a new trial of the issues." (Freeman on Judgments, sec. 498, p. 874.)

Opinion of the Court-Coleman, J.

By the Court, COLEMAN, J.:

Margaret Wade brought suit in the district court of Washoe County to set aside a decree of divorce theretofore entered against her and in favor of her husband, James Wade. In her complaint she joined the administrator of the estate of her deceased husband (he having died after the decree of divorce had been entered) and the three children of the deceased. When the case was called for trial counsel for defendants objected to the introduction of any testimony in behalf of the plaintiff, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The objection was sustained by the court, and an order was entered dismissing the action. The sole question urged for our consideration is that the complaint states a cause of action, and hence the court erred.

1. Two theories are urged to sustain the assertion that the complaint is good. It is first insisted that, as it is alleged that James Wade was not a bona-fide resident of Washoe County, Nevada, at the time he brought the divorce action, the complaint contained a sufficient showing to sustain the contention that the court had no jurisdiction in the divorce proceedings, and hence the decree of divorce is null and void. We are unable to agree with this contention. The section of our statute upon which this question turns reads as follows:

"Divorce from the bonds of matrimony may be obtained, by complaint under oath, to the district court of the county in which the cause therefor shall have accrued, or in which the defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be either the county in which the parties last cohabited, or in which the plaintiff shall have resided six months before suit be brought. ** (Stats. 1915, p. 26, sec. 1.)

From a reading of this section, it is apparent that the district court of a county may acquire jurisdiction of divorce actions, as said in Tiedemann v. Tiedemann, 36 Nev. 494, 137 Pac. 824: