Stevens v. Stevens

Young and Carswell, JJ. (dissenting).

We do not think that the defendant’s counterclaim can be sustained. He is seeking affirmative relief and, in order to accomplish this, he is in effect impeaching the Nevada decree of divorce obtained by him. The authorities seem to be clear that this cannot be done. On the other hand, the plaintiff wife did not, in our opinion, waive any right she had by bringing this action for separation. As the Nevada decree was obtained without proper service upon her, it was void and she was entitled to treat it as void and to institute this action for separation,…