delivered the opinion of the Court:
Thе appeal in this case is taken from an order denying a motion to dissolve an injunction, which had been granted upon a verified complaint. An answer having been subsequently filed, the motion to dissolve was made upon the pleadings.
The parties were formerly husband and wife; but in May, 1869, a decree was rendered, upon the application of the appellant, by which they were divorced from the bonds of matrimony. In his complaint in the action for the divorce the appellant did not state that there was any property whatever belonging to the community, nor ask for any judgment or determination concerning it. The decrеe was rendered without the appearance of the respondent, and it was entirely silent as to the distribution to be made of the common property. It was obtained in the Sixteenth Judicial
It is urged on behalf of the appellant that the Court below, in entertaining the action, interfered with the jurisdiction of the Court in Kern County, which is co-ordinate with its own, and the cases of Rickett v. Johnson (
Her almost total disability to interfere, by aсtion or otherwise, in the control of the community property during the existence of the marriage arose from the provisions of the statute (Stats. 1853, p. 165), by which her “husband” was vested with its exclusive management. The decree here, however, deprived her of her husband, and, of course, remitted her as being discovert tо the use and present control of any property to which she might be entitled.
Nor is there any doubt that as a consequence of that decree she is entitled to a share of the property, if any, acquired by the late matrimonial community of which she was a constituent. The statute has provided (Statutes 1857, p. 199,) thаt if the marriage be dissolved by decree, she
It is further claimed, however, that though the decree granting the divorce does not in terms deprive the respondent of a share in the common property, yet, as it was rendered against her on the ground of adultery committed by her, it must be considered as importing her exclusion from all benefit of that property. To this proposition several sufficient answers readily suggest themselves. It does not appear that the divorce was granted for the cause of adultery. If it did so appear, however, the consequence sought to be adduced would not follow. Even if the decree had directly fixed upon the respondent the guilt of adultery, the- statute would not on that account forfeit the whole or any part of her share in the common propеrty to which she would have been otherwise entitled. It merely permits the Court in its discretion, under such circumstances, to visit that consequence upon her by its judgment. But here no such judg
Under the provisions of the statute, proрerty which is acquired during the marriage, unless acquired by gift, bequest, devise, or descent, is common property. It belongs to the matrimonial community, and not less to the wife than to the husband. It is true that the interest of the wife therein pending the marriage has been termed “a mere expectancy” (Van Maren v. Johnson,
We think, therefore, that upon the facts stated in the complaint, the injunction preventing the appellant from disposing of this property, with a view to place its proceeds beyond the reach of the process of the Courts, and to deprive the respondent of its benefits, was properly issued.
It is lastly claimed upon the part of the appellant that his answer fully denies all the equities of the complaint, and that for that reason the injunction should have been dissolved.
A consideration of this point makes it necessary that we should state somеwhat more in detail the contents of the complaint than we have up to this point found it necessary to do.
It appears, by the allegations of the bill, that the parties were married in 1862, and that for some years thereafter, and up to May 20, 1869, they were lawful husband and wife. On the last mentioned day the decree оf divorce was entered, divorcing the parties, in the Sixteenth Judicial District Court for the County of Kern. The appellant instituted the action in that Court, though at the time of its commencement the parties in fact resided in the County of Santa Barbara, in the Seventeenth Judicial District. He fraudulently brought the respondent into Kern County, for the purpose of having the process served upon her, and the service having been effected, he misinformed her of the purport of the papers so served upon her, and with a view to conceal their true nature from her, he, as soon as the officer making the service had departed, violently took them from her possession and destroyed them. He thereafter returned the respondent to her home in Santa Barbara County, and there kept her restrained of her liberty and secluded from all intercourse with her friends, and in ignorance of the pendency of the action, and thereby deprived, of course, of any opportunity to make her defense, though she had a good one on
We think it would be easy to show, if it were important to do so, that the answer filed does not, by fair construction, fully or fairly deny the allegations of the complaint.
For instance, it is charged in the bill that the appellant “fraudulently transported plaintiff" into said Kern County for the purpose of having her served with а copy of the summons and complaint” in the action to obtain the divorce. Of course the substance of this charge, in connection with the other allegations of the bill, is that he took her away, from her friends in Santa Barbara County, where she was-living at the time, and where she might have had the benefit of advice and assistance in her distress, and carried her into, the County of Kern, where she seems to have been a stranger personally, to obtain advantage over her. We cannot see why he would have taken her to Kern County to have her served with process, unless it was to obtain an-unfair advantage over her, for thе process of the District Court for Kern County might easily have been served upon her in Santa Barbara. But however this may be, the appellant’s only answer to this allegation is as follows: “Defendant denies, and it is not true, that he fraudulently transported the said plaintiff into the said Kern County for the . purpose of having her servеd with a copy of the summons or complaint in said action aforesaid.” This, of course, is but a palpable evasion of the substance of the charge which it pretended to answer.
In our opinion, the answer, as a whole, is utterly insufficient as a full or fair denial of the equities disclosed in the bill—in fact, the princiрal matters upon which the bill pro-. ceeds are not denied at all.
But, irrespective of this obvious insufficiency in the answer here, we do not think that it can be maintained that the general rule, that when an answer denies fully the equities of the bill the injunction should be dissolved, is one of universal application, or without exception, or that the dissolu-.
In Poor v. Carleton (3 Sumner R. 75), Mr. Justice Story, after a review of the authorities on this point, declares that he should have been sorry to find that any such practice had been established, as that an injunction should, at all events, be dissolved upon a mere denial by the answer of the whole merits of the bill. That there are many cases in which such a practice would be most mischievous—nay, might be the cause of irreparable mischief. He says that the question of dissolution, after the coming in of the answer, is one addressed to the sound discretiоn of the Court, and adds that if the authorities, properly considered, should seem to establish a contrary doctrine, he would hesitate to follow them in a mere matter of practice subversive of the very ends of justice.
The cases of Moon v. Hylton (Dev. Eq. 429); Bank of Monroe v. Schermerhorn (Clark’s Ch. R. 305); Cox v. The Mayor, etc. (18 Geo. R. 735), and numerous other foreign authorities, ■ support this general view, and in Hicks v. Michael (
And when the Court below has seen proper, in the exercise of its discretion, to continue an injunction in force until the hearing of the cause, its determination, in so far as it rests upon the effect of thе denial of the equities of the' bill merely, is entitled to great consideration here, and we ought not to disturb it except, perhaps, under peculiar circumstances, or unless an abuse of discretion should be made to appear. (Morris v. Jersey, 1 Beasl. 227; Id. 542; Dent v. Summerlin, 12 Geo. R. 5; Loyless v. Howell, 15 Id. 554; Doughty v. Summerville, 3 Halst. Ch. 629.)
We see nothing in the circumstances of this case indicating that this discretion hаs been abused or misplaced.
The order is affirmed.
delivered the following dissenting opinion:
The temporary injunction was granted on the complaint alone. The motion to dissolve the injunction was based on the complaint and answer. All the allegations of the complaint, charging that the property mentioned therein was common property, are fully and sрecifically denied in the answer. Whatever may be the merits of the plaintiff’s case in other respects, unless it appears to the Court that the property mentioned, was the common property of the plaintiff and said Alexis, the injunction should have been dissolved. The equities of the case in respeсt to the divorce, the means by which it was obtained, and the facts going to show that plaintiff is entitled to a decree of divorce, may all be in her favor; but they throw no light whatever on the question in respect to the common property, and, therefore, should not- be taken into the account in determining whether thе injunction should be retained. The plaintiff, in applying for the injunction, might have supported her allegations in respect to the common property by" affidavits, showing— if such were the fact—that the property was common property ; but as she has chosen to rely solely on her own allegations, unaided by any fаct in the case, the Court should, in my opinion, have dissolved the injunction, upon the coming in of the answer denying her allegations in that respect.
There is a further objection to the injunction. It appears by the pleadings that persons therein named are indebted to the defendant, Alexis, in divers large sums of money; and by the injunction he is restrained from collecting those sums of money from his debtors, and no provision is made, by the appointment of a receiver or otherwise, for their collection. -No authority in support of this branch of the order is cited, doubtless for the sufficient reason that none can be found. In my opinion the injunction should have been dissolved.