¶1By the Court,
¶2This is an appeal taken by the defendant from a decree dismissing an action for divorce. It is set out in the decree that the dismissal is without prejudice to the plaintiff to start a new suit with the same cause of action set forth in his amended complaint in the event a reconciliation cannot be had between the parties. The action was brought on the ground of extreme *127cruelty alleged to have been committed by the defendant after a decree for separate maintenance had been made and entered in favor of the defendant and against the plaintiff by the court of Sangamon County, State of Illinois, on the 3d day of May, 1919. In this connection it is alleged that prior to said date, and ever since, the parties have been living separate and apart from the other. The acts of cruelty alleged are denied in the answer, and nonsupport and wilful desertion for more than one year prior to the filing of the complaint, and the pleadings in the suit and decree for separate maintenance in the circuit court of the State of Illinois, in and for the county of Sangamon, are set up as affirmative defenses.
¶3The prayer of the answer asks that plaintiff take nothing by his said case and that defendant be dismissed with her costs, and for all other proper orders, and for general relief.
¶4The trial court found that the jurisdictional facts alleged in the complaint were true, but that the acts of cruelty charged therein were not true. It also found the allegations of wilful desertion in a supplemental complaint to be untrue.
¶5As to the issues raised by the answer, the trial court found that the affirmative defense of nonsupport was untrue, except that since September 22, 1922, plaintiff has paid to the defendant on account of the said Sangamon County decree the sum of only $160. No finding was made as to the affirmative defense of wilful desertion. The trial court found that all of the allegations of the affirmative defense setting up the record of the circuit court of Sangamon County, State of Illinois, are true, and that the copies of such record attached to defendant’s answer are full, true, and correct copies; but it is of the opinion, as evidenced by the findings and conclusions of law, that such record is not sufficient to establish a recriminatory defense, or the defense of res adjudicata.
¶6The defendant contends that it is sufficient, and that on the findings she is entitled to a judgment on the *128merits; that in this respect the court erred in dismissing the case without prejudice to the plaintiff to start a new suit with the same cause of action in the event a reconciliation cannot be had between the parties.
¶7The record of the Illinois court could not operate as res adjudicata of the facts involved for one reason, at least, that the acts relied on as extreme cruelty are alleged to have been done subsequent to the decree of separate maintenance. If the court had rendered judgment for the defendant on the ground that the record of the Illinois court constituted a recriminatory defense, it would have been wholly inconsistent with the finding to the effect that defendant was guiltless of the acts alleged against her in the complaint. A “recriminatory defense” is established when both spouses have been guilty of misconduct which would be good ground for a divorce. In such a situation neither is entitled to a divorce upon the familiar principle that he who comes into a court of equity must come with clean hands. It is a plea in bar and was so pleaded by the defendant, but it cannot operate as a plea in bar unless the defendant was guilty of the misconduct alleged in the complaint, which she denies, and on this issue the court found in her favor. Had she pleaded the facts set out in the affirmative defenses as grounds for divorce and had asked in her answer that a divorce be awarded her on such grounds, a different question would be presented. But they were pleaded as recriminatory defenses, and a dismissal of the action asked for. It is therefore apparent that the trial court, being of the opinion that the plaintiff had failed to prove a sufficient case for the court, could have rendered no other judgment than it did. The defendant was entitled to a non-suit or dismissal upon motion under the provisions of subdivision 5 of section 295, civil practice act (Rev. Laws, 5237).
¶8 The record is silent as to whether such motion was made by the defendant, but counsel for the parties in their briefs state that it was made by the defendant, her counsel asserting that it was denied, and counsel *129for plaintiff claiming that action on the motion was held in abeyance. Even though the court may have denied the motion in the first instance, it could have granted it at any subsequent stage of the proceedings, and the judgment, based as it is on the failure of the plaintiff to make out a case, has that effect. Every presumption is in favor of the validity of the judgment. Raine v. Ennor, 39 Nev. 365, 158 Pac. 133.
¶9The judgment should be affirmed, and it is so ordered.