95 Cal. 171 | Cal. | 1892
Lead Opinion
Action for divorce upon the ground of extreme cruelty. Judgment was entered in favor of plain!iff, and the defendant appeals.
1. After the filing of the complaint in this action, and before any appearance on the part of defendant, the attorney for plaintiff filed with the clerk of the superior court a paper properly entitled in the cause, and stating, “ The above-entitled action is hereby dismissed,” but no judgment of dismissal was entered. It is claimed by appellant that upon the filing of this paper the court lost jurisdiction of the action, and that jurisdiction was not restored by the subsequent appearance and answer of defendant. This objection to the jurisdiction of the court was made in various forms in the court below, and overruled. The court did not err in its rulings upon this point. The filing of the paper referred to was in effect an order for a dismissal of the action, and would have been sufficient authority for the clerk to h&ve entered a judgment of dismissal, but until the entry of such judgment the court retained jurisdiction of the case. (Page v. Superior Court, 76 Cal. 372; Acock v. Halsey, 90 Cal. 215; Rochat v. Gee, 91 Cal. 355.)
2. It is urged by appellant that the facts alleged in the complaint and found by the court do not entitle plaintiff to the decree, which he obtained, dissolving the marriage which existed between him and appellant. The cruelty alleged and found is, that appellant inflicted grievous mental suffering upon plaintiff, by imputing to
Tested by this rule, it must be conceded that the findings here are insufficient to sustain the judgment. But
We cannot say in this case that the court was not fully justified in finding that the conduct of the defendant inflicted upon plaintiff grievous mental suffering, as alleged in the complaint.
The evidence was sufficient to sustain the finding of the court that plaintiff had been a resident of the state for more than six months prior to the commencement of the action.
The refusal of the court to grant a continuance cannot be held to be an abuse of discretion. In Kneebone v. Kneebone, 83 Gal. 647, the court said: “It is settled law in this state that applications for continuance are addressed to the sound discretion of the trial court, and its action will not be disturbed on appeal, unless the record affirmatively shows that it abused its discretion. In Musgrove v, Perkins, 9 Gal. 212, the court, per Field, J., said: The granting or refusing a continuance rests in the sound discretion of the court below, and its ruling
While the trial court should be most liberal in granting continuances in divorce cases, because the public as well as the parties to the action are interested in the result of the suit, a defendant must be held to the exercise of good faith and diligence, and cannot be heard to complain if the failure to present his defense results from an attempt to subordinate the business of the court to his own business engagements and convenience.
The judgment and order are affirmed,
Dissenting Opinion
— I dissent from the judg
The defendant is a non-resident of the state, and her answer was filed October 15, 1889, and on the 25th of that month the court, on motion of plaintiff, and against the objection of defendant, set the case for trial on December 2, 1889; and afterwards the time for trial was continued by consent until December 6, 1889, without prejudice to the right of defendant to move for a further continuance. Upon that day the defendant moved for a continuance of the case until January 15, 1890. The motion was upon the ground that depositions of certain witnesses had not been returned, and also for the alleged reason that defendant was ill at Kansas City, Missouri, and unable to come to San Francisco without endangering her prospects for recovery. This motion was supported by the affidavit of one of her attorneys, which stated, among other things, “ that affiant is further informed by telegrams received from defendant on the twenty-third, twenty-sixth, and thirtieth days of November, 1889, and also from affidavits of Dr. J. C. Rogers, hereto attached, and affiant believes, and thereupon states, that defendant is now ill at Kansas City, Missouri, and unable to travel without danger to her health.” Accompanying this was the affidavit of defendant herself and her physician, to the same effect. Many telegrams from defendant to her attorney were also produced. I am unable to find anything in the record which directly contradicts the facts stated in these affidavits in regard to the state of defendant’s health. That which comes the nearest doing so is found in the statement or affidavit of plaintiff’s father, wherein it is said: .“I am informed and believe that she is now performing as an opera bouffe artist with a company, and has been doing so for many months, and is not too sick to come here or travel.” Manifestly, this is not an assertion that the defendant was not in fact sick, as stated in the affidavits of herself
In actions for divorce, public policy imperatively requires that nothing should be done in haste. The public are interested in having no divorce granted except for adequate cause, and the surest way to determine whether there is good cause or not is to hear both sides. In accordance with this rule, it has always heretofore been held by this court that when an application is made to set aside a judgment of default, and for leave to answer in such an action, a more liberal rule is to be applied than in other cases, in which only private rights of property are involved. Thus in the case of Wadsworth v. Wadsworth, 81 Cal. 182,15 Am. St. Rep. 38, this court reversed the action of the lower court in refusing to set aside a default, although it was admitted that'the appellant had been guilty of such n egligence as would in an ordinary action have d eprived her of the right to such relief. The court there said: “ So far as the divorce awarded to the defendant is concerned, the motion should have been granted under the rule laid down in McBlain v. McBlain, 77 Cal. 509. In that case the court, per Paterson, J., said: The parties to the action are not the only people interested in the result thereof; the public has an interest in the result of every suit for divorce; the policy and the letter of the law concur in guarding against collusion and fraud; and it should be the aim of the court to afford the fullest possible hearing in such matters/ In the present case there seems to have been an honest desire on the part of the plaintiff to present her side of the case; and while in an ordinary action the neglect shown might be sufficient to deprive her of a right to relief, yet in this kind of case a more liberal rule should prevail.”
It is plain to my mind that if the court below had kept in view the rule as thus declared, it would not have
It is very apparent from all of the telegrams, letters, and affidavits submitted to the court, that the defendant desired to be present at the trial, and neither of the motions for a continuance called for any unreasonable delay, and there is nothing in this record to show that plaintiff could possibly have been injured if either of them had been granted. Under such circumstances, the refusal of the court to postpone the trial was error, and not within the limits of that judicial discretion which the law intends shall govern and restrain courts in their rulings upon such questions, and which discretion is never capricious, arbitrary, or unjust, but is always “ exercised in conformity with the spirit of the law, and in a manner to subserve, and not to impede or defeat, the ends of substantial justice.” (Bailey v. Taaffe, 29 Cal. 424.)
Whatever cause may have existed for a divorce in this case, or however unwise or unfortunate the marriage between the parties may have been in the first instance, I can find in such facts no justification for bringing on the trial against a non-resident woman, in fifty-three days after issue joined, in the face of a demand for the limited and reasonable postponement asked for by her counsel, and which motions for such purpose, it must be presumed from this record, were made in good faith. The marriage was a lawful one, and gave to the defendant rights of which she should not be deprived without full and complete opportunity for defense.
The judgment and order should be reversed.
Rehearing denied.