252 P. 656 | Cal. Ct. App. | 1926
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *365 An action by respondent, Frances L. Goetting, against her husband, Charles L. Goetting, for permanent support and maintenance. The action as to Daisy L. Ford, who was joined as a defendant, was dismissed. Judgment was entered for respondent, from which the husband appealed on the judgment-roll alone, urging as grounds for reversal the insufficiency of the complaint to support the judgment awarding portions of the community property to respondent, that the special demurrer thereto on the ground of uncertainty should have been sustained, and that the action is barred by the provisions of section 343 of the Code of Civil Procedure.
The complaint, which was filed on October 9, 1923, alleged that the parties, who had been married for nearly thirty years, separated on August 17, 1917; that on numerous occasions during their married life the exact dates of which respondent was unable to state, appellant without cause or provocation had cursed her, calling her vile and obscene names, and on numerous occasions had struck and knocked her down; further alleging that without respondent's knowledge or consent he had on numerous occasions prior to the separation accompanied defendant Ford to various cafes and roadhouses, remaining away from his home during the night; that since the separation he had lived with the latter in an apartment house in San Francisco, and that his conduct had inflicted on respondent great bodily harm and grievous mental suffering. The allegations of cruelty were denied by appellant, who filed a cross-complaint for divorce on similar grounds, in which he prayed that the community property be awarded to him.
[1] The averments of the complaint show that the acts of cruelty complained of were wrongfully inflicted, and were sufficient to state a cause of action for divorce. The uncertainties to which the special demurrer was directed related to the language applied to respondent and to the times and places of the commission of the acts alleged. While the *367
special demurrer of these allegations might properly have been sustained (Johnson v. Johnson, 4 Cal. Unrep. 446 [35 P. 637]), as stated, the allegations were denied by answer and the case tried on the issues presented. When a case has been tried and a judgment rendered on the facts, in order to warrant a reversal for error in overruling a demurrer interposed on the ground of uncertainty, it must appear that some substantial right of the demurrant has been affected, some prejudicial error as distinguished from abstract error suffered by him, or he has no ground for complaint (Rooney v. Gray Bros.,
The complaint alleged that the appellant was the owner of a mercantile business, from which he derived a large income, together with deposits in certain banks; and by the cross-complaint this with other described property, both real and personal, was alleged to be the community property of the parties. By the prayer of the complaint respondent asked for attorney's fees and costs and for a decree awarding the sum of $400 per month for her support and maintenance, the latter sum being alleged in the prayer to be reasonable in view of the financial condition of appellant. The court found respondent's allegations of personal violence and verbal abuse to be true; that certain of these acts were committed prior to the year 1919, and others before the year 1917, and that the allegations of cruelty contained in the cross-complaint were untrue. The decree divided the real and personal property between the parties, awarded respondent the sum of $125 per month for her support, with a lien on appellant's undivided interest in one of the parcels of real estate as security for its payment.
[2] Appellant contends that it appearing that the community property was acquired previous to the year 1917 he had a vested right to its management and control, with the power of disposition, subject only to the provisions of section 172 of the Civil Code in force prior to the amendment of that section in 1917 (Stats. 1917, p. 829), and that the provisions of the amendment to section 137 of the Civil Code adopted at the same session (Stats. 1917, p. 35), granting the power in actions for separate maintenance to make the disposition of the community property as in actions for divorce, and pursuant to which the court acted in the instant case, could be given no retroactive effect, and hence *368
were not applicable to community property acquired before its adoption, citing Spreckels v. Spreckels,
[6] We are of the opinion that the action was not barred by section 343 of the Code of Civil Procedure. That section has no application to actions for divorce (Morgan v. Morgan,
It is urged that the averments and prayer of the complaint were insufficient to warrant the relief granted.
[10] After alleging the existence of certain community property respondent asked for the allowance of a monthly sum for her support. Appellant by his cross-complaint sought, in addition to a decree of divorce, to have all the property set aside to him. In Sherman v. Sherman.
[12] The failure to find on certain allegations of the answer wherein appellant sought to justify his conduct by averring similar acts by respondent does not warrant a reversal (Mohr v.North Rawhide M. D. Co.,
We find no error in the record which can reasonably be held to have been prejudicial to appellant or to have resulted in a miscarriage of justice, and the judgment is therefore affirmed.
Tyler, P.J., and Knight, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on January 19, 1927, and a petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 17, 1927. *371