279 P. 1064 | Cal. Ct. App. | 1929
This is an appeal from a judgment on the pleadings. The plaintiff filed a complaint alleging that she had prior to March 31, 1920, maintained an action for divorce against the defendant in Minnesota; that the plaintiff and defendant signed a stipulation that if the court should award a decree it should incorporate therein an order for the defendant to pay plaintiff the sum of $75 per month as alimony so long as she should remain unmarried; *197 that the court granted the decree and made the order for the payment of the monthly allowance; that the order was by stipulation of the parties modified temporarily, but that giving the defendant credit for payments made by him and the sums remitted by the temporary modification there yet remained unpaid $1680, which the plaintiff sought to recover. There was the further allegation that the court which rendered the decree and in which the defendant personally appeared after service of process was a court of general jurisdiction and that the order made has the force and effect of a judgment for the payment of money. The defendant responded to the complaint by an answer in which he denied for lack of information and belief the general jurisdiction of the court, his personal appearance therein, the rendition of a decree of divorce, that the plaintiff has not remarried, or that the copy of the stipulation modifying the allowance was correct. He admitted the making of the stipulation for the payment of alimony to become effective only upon a decree being rendered, but alleged that the agreement as well as the subsequent one founded upon it was contra bonos mores. He denied that the decree or judgment of the court has under the laws of Minnesota the force or effect of a judgment at law for the payment of money and denied that there was due or owing the sum of $1680 or any other sum. The plaintiff interposed a demurrer, a motion to strike portions of the answer and a motion for a judgment on the pleadings, the last motion being based upon the ground that the answer was sham, false and a dilatory and evasive plea. The motions were accompanied by an affidavit of counsel setting forth that he had discussed the subject matter of the action with the defendant and that the latter had knowledge of the things denied by him in his answer for lack of information and belief. The court, as already indicated, granted this motion and rendered a judgment for the plaintiff.
The appellant assigns four reasons for a reversal of the judgment. They are as follows: (1) The decree of the Minnesota court was not final and therefore could not support an action in California; (2) Issues of fact were raised by the answer of the defendant; (3) The court failed to assume the truth of the allegations of the answer, but considered the affidavit of counsel as sufficient to overcome the allegations of the answer; (4) That the basis of the decree *198 of the Minnesota court was an agreement which was contra bonosmores. [1] Turning to appellant's first contention we have now to determine whether an action will lie upon a decree for alimony which is not final and also whether the defendant put in issue the question of fact concerning the state of the law in Minnesota.
A very succinct and yet comprehensive statement of the law upon the first branch of this question is found in Sistare v.Sistare,
[2] The next assertion may be very briefly answered by the observations that a defendant has not the right to deny for lack of information sufficient to form a belief those averments which are presumptively within his knowledge or *200
where he has the means of ascertaining their truth. (Crosby v.Fresno Fruit Growers Co.,
[4] We have not overlooked the fact that since this judgment was rendered and months after the appeal was perfected, section 1875 of the Code of Civil Procedure was amended (Stats. 1927, p. 110), allowing the courts of this state to take judicial notice of the laws of a sister state, but that cannot affect the present appeal.
[5] We cannot assume that the court considered the affidavit of counsel as contradicting or overcoming any sufficient denial of the answer. The affidavit was properly presented to the court for its consideration in connection with the motion to strike.[6] The court having ordered the motion to strike off the calendar and granted the motion for judgment on the pleadings, we must presume that the trial judge considered that the denials as they stood were insufficient in form and substance.
[7] The last assertion of appellant's counsel that the agreement forming the basis of the decree was contra bonosmores can hardly be raised in an action upon the decree. [8]
It is too well settled to require extended notice that the judgment of a court of a sister state is final and conclusive provided only that the court had jurisdiction of the cause and of the parties. (Estate of Hancock,
Judgment reversed.
Works, P.J., and Craig, J., concurred. *201