*1 Hаrding Harding. v. January 2, In Bank. A. No. 1170. 1906.] [L. HARDING, Respondent, ADELAIDE M. F.
GEORGE
HARDING, Appellant. — Appeal — — of Decree Reversal Affirmance Divorce Court—Foreign Supreme Decree of Maintenance—Faith Reversal.—Where of this court and Credit—-Effect plaintiff in reversed affirming a of divorce favor of decree court on the that this court had the United States and maintenance failed due faith credit decree of plaintiff state, against defendant another re- obtained immediately reverse of the versal does not remittitur coming down of the is but disposition court for such further as is not pending still federal inconsistent with the — — Id.—Separate of Decree not Waived Defenses Plea Order rely had defendant in the divorce suit Proof.—The defenses, plaintiff’s upon separate and she denied residence when alleged, desertion and the decree of another state in her favor in such affirma- awarding maintenance bar denied, natural order wоuld be tive defense was deemed and the evidence; prove the decree after had his her to cross-examining plea by did not waive such response plaintiff’s offering witnesses and thereto witnesses ease, she at all times insisted the merits of plea. her plea proved it in Megerle in the Overruled.—Anything incоnsistent eases Id.—Cases Spring Valley WorTcs, Ashe, Water and San Francisco v. not waive with doctrine that a defendant does act of judgment pleaded in bar the mere his under plaintiff upon merits, that contesting-the its claim may have, may plead any defenses that he pleaded to may pursue rely upon his defеnses so all of good, pleaded is found he end, defense so prevail, overruled. entitled to must be deemed Estoppel.— Rights' — — Avoidance of Id.—New Trial of Plaintiff record, the new trial which result although finally established that the answer record the evidence thereof showed an con- stituting a full cause of action for divorce defense to the sole asserted not waived such and that defendant may he defense, every nevertheless defense urge alleged show there was no estoppel; have to the and if can he judgment, the answer fact inconsistent those in support thereof, legally anything avoids the which do so. APPEAL from a of the Superior San Diego County. Conklin, Judge. N. H.
Opinion upon remittitur from the Supreme Court of the *2 reversing States the judgment United of this court 690, (140 284]), by Pae. judgment which the of [74 the Superior affirmed. are opinion stated the of the court. Hubbard,
T. W. Henry Tardy, for Appellant. G. Ward, M. L. Britt, Respondent. Hunsaker & for ANGELLOTTI, J. by This after court, decision this whereby judgment superior the Diego court of San County granting plaintiff a divorce from on the ground (140 of desertion was 284]), affirmed to the supreme carried United by States court a writ of court, upon error. That the that this court in affirm- ing judgment such had failed tó to a decree of the courts Illinois, of state of rendered therein an action main- prosecuted by against tenance theretofore the due faith and credit to which was entitled under States, judgment 11 constitution reversed of court, and remanded the this for further by not inconsistent” with the opinion filed said (198 supreme 679].) Sup. U. S. Ct. coming supreme of the remittitur down of United States court, by was made a motion herein defendant that “the re- superior mittitur in said action forthwith issue to the court county Diego, state of San This California.” part met motion was counter motion hear proceed to and determine such matters involved as have not been decided United States appeal take, further accordance such necessary рroper for the of said the mandate cGurt.as appeal disposition of this court. together.
These motions been submitted States judgment apparent under in this pending is now in this cause pro- proper, may deem disposition as this court for such always be inconsistent disposition vided that such (cid:127) court. The reversal opinion with the the federal of this court was not a reversal of the must, there court. To effect such reversal existing, here of this under the circumstances reversing judgment. judgment of Whether such a must follow the action of the United reversal depends upon the answer to whether other course would be incоnsistent with the opinion admittedly finally court. That established the fact court, pleaded the final decree of the Illinois and estab- lished constituted a full and com- the sole plete defense to cause of action for divorce asserted urged Plaintiff, however, original herein. on the hearing appеal that, if such Illinois had this effect, had, by defending merits, the defendant on the arising benefits of the on such decree. This con- *3 decision; was not noticed this court in its tention former putting its decision the court that the Illinois judgment could not have effect attributed to it defend- ant, arising the estoppel even if the benefits of оn such decree It is had not waived. now contended question of waiver has not been foreclosed the decision supreme court, and that this court it, upon should consider and if it finds record that her judgment, under the Illinois superior it should affirm the court. No other suggested by plaintiff why reason is the decision of the United requirе judg- court does not reversal of the superior ment of the necessary
We not consider it to here elabor do discuss the argument question ate of counsel as to whether this of waiver open by us, now is to consideration for we should conclude open upon that it is so we satisfied that it could not be hеld the record before that defendant had waived the benefit of us judgment. the Illinois The facts to constitute such simple. complaint waiver are few and In her answer to desertion, defendant, specially pleading in addition to great Illinois minuteness and decree of the and the court of that state on supрosed appeal, “as a bar to and of the said suit and up by plaintiff herein;” action set also denied plaintiff’s (a residence in thing California essential to his action) to maintain the charge of -desertion. the trial in the court she object did not to evi by plaintiff allegations dence offered to sustain the of his com she, through plaint, and attorneys, her both cross-examined plaintiff’s witnesses and offered certain in response upon to evidence adduced him the merits of his cause. times, however, upon She at all insisted her claim that the Illi defense, nois constituted a full and introduced the Illinois in evidence, record relied complete defense, the same as a and there nothing to indi cate intention to waive the benefit of judg the Illinois ment, unless such intention was manifested defendant’s interpose any objection failure to to such evidence as was by plaintiff upon offered of residence and deser tion, hеr cross-examination of witnesses subject, and the introduction tending of evidence disprove allegation of desertion. that, It manifest un circumstances, der the these facts indicated no intention on the part of defendant to waive the benefit judg of the Illinois object ment. Her failure to by plaintiff evidencе offered complaint of his certainly indicated apparent such intent. any objection no must neces sarily have been overruled. The defense of a adjudi pleaded by was, cation like defense, other denied, only and was deemed available proof thereof, which, prescribed by the natural order (Code our code Civ. Proc., 607), only see. would be made after the plaintiff had part. the evidence on his In receiving the evidence by plaintiff the trial offered court could not be called *4 anticipate to evidence of Any legal defendant. by plaintiff support allegations offered of his com plaint admissible, any objection was might that have been interposed thereto have been overruled. De fendant, to save her under the defense of adjudi former cation, compelled was not to make objections. such untenable equally clear that her cross-examination wit nesses, and the introduction of evidence tending disprove statements, their indicated no intention of abandoning adjudication. of former other defense She still affirmatively v. introduced her evidence that defense and upon insisted set right to system she Under our had thereof. (Code rely upon many as she had forth, defenses prove, Siller, 414, 417, Pac. Proc., 441; v. Civ. see. Banta 1076]), 308, 315, Woodward, 935]; Miles v. 115 Cal. be required her to elect and we know of no rule of law that defenses, the court asked tween her two even had do, not. compel her so to which he did Plaintiff that it is otherwise established contends Ashe, 74, Megerle wherein state, and cites the cаse of 33 Cal. judicial rely a determina- party upon it was said: “A cannot by way upon proof tion of an issue also The neces- upon facts which the based. determination sary as to the estoppel preclude inquiry effect of the is to truth when who is en- determined, party of the matter a up open inquiry intо titled to set does matter, party truth complain that the other cannot pursues was regard estoppel.” language it without to the This by majority who used in relation to a had claim pre-emption endeavored to show he had a valid that fact, adjudicated as a matter of that it had been and also grantor, department, him land between and defendant’s that im- he had such a valid claim. portant held that the fact the court view of that grantor really party defendant’s not to the other was proceeding adjudication the record of binding therefore not him. We are a loss to under- at goes quoted, how the if it еxtent con- stand statement to the system. In plaintiff, tended for be true under could our Spring W., Valley case of W. later San Francisco squarely it was that a attempting held plead based, adjudication facts which an adjudication, pleading the did not the benefit waive adjudication, although not and that did adjudication prior state a cause did, interposed complaint should and that a demurrer Megerle Ashe, been overruled. It was said “only party decides that opinion, such case entitled, estoppel to which he is waive the benefit of an rely it, but takes when he does so does adjudication is based.” issue the facts which the Cal.—26 CXLVIII *5 Harding Harding. Cal.'
The court further said: “The manner in most usual which it by omitting has been held an estoppel is waived is plead certainly it. In this case the not waived any estoppel.’’ the benefit of the It is somewhat difficult to see principle distinction between the case of one who asserts pleadings thing both claims his оne who does the same If his evidence. one is a waiver of the the other appear may the same. But whatever would to be construction Megerle Ashe, put upon be case .later Lovell, 14, 22, Rep. 679], 49 Am. Hicks v. might something ap- is said that construed as an be proval quoted of the statement from the former we are that, system, a satisfied under our defendant does not waive bar, by pleaded his under a the mere act contesting plaintiff upon of also the claim of the the merits. any exception We can see no valid reason in such a case for state, general applicable rule to the effect that a plead of the defenses that he have, may pursue rely upon all so of his defenses end, pleaded to the and that defense so any- prevail. If good he is entitled to there be found to be thing with this in the two cases relied inconsistent California it must be considered as overruled. being tenable, mаde as to waiver not there
The contention the decision of the United States be no doubt that under can judgment and order court supreme court the must be reversed. following made: The remittitur from order therefore reversing supreme States remanding this court for further the cause to court with the said inconsistent filеd, court, having
United States that thereunder appearing it reversed, in said cause must be superior court and order denying judgment and order the motion is ordered hereby reversed and the the same a new trial for County Diego of San superior remanded opinion with the not inconsistent further opinion; further or- and this with the mаndate dered, in accordance supe- from have execution said su- expended in said United States' her costs rior *6 court, amounting recover preme $629.75, and that she appeal. her costs on this J., J., J., Shaw, Van
Beatty, J., McFarland, Lorigan, C. Dyke, J., Henshaw, J., concurred. ' for re- following opinion on motion was rendered
hearing :— rehearing
ANGELLOTTI, application for a J.—The in opinion opin- was said modification of is denied. What opinion that the ion to the effect ‘admittedly fact finally that the final de- court1 established by evidence court, pleaded of the Illinois cree and established complete in defense to the this constituted full and ’’ herein, sole cause of action of asserted divorce solely the conditions shown was said with reference to absolutely no appeal. record, record on there was slightest degree intimated, estoppel in the other defense alleged urged in disposed than the waiver opiniоn. findings If the trial had been our such justify judg- course, as to this would have ordered was, in There how- ment entered thereon favor defendant. ever, finding enough this, and for that no broad warrant reason remanded for further opinions court of the inconsistent with (Harding Harding, 198 U. S. United States and Sup. 679]; 284].) Upon the Ct. [74 new trial follow undoubt- which urge edly estoppel. he defense that have finally opinion What was established answer, thereof, estop- support showed the record of action for pel, constituting a full to the sole cause defense by plaintiff. divorce asserted the benefit of the
We determined that in the the acts of the on the trial triаl is the If on a new de- court. So much law case. the Illinois fendant can show that there no alleged with those other fact inconsistent legally thereof, anything which answer avoids Bell v. Staacke. so, estoppel, will doubtless allowed to do and there nothing already pre- rendered which would showing. clude
Beatty, Henshaw, J., Shaw, J., J., J., and McFarland, C. concurred. In Bank. January 2, F. 4398. No.
[S. 1906.] BELL, Appellant, al., et GEORGE STAACKE JOHN S.
Respondents. Transcript— prom por Filing Appeal Judgment—Dismissal—Time II Trial Order.—Under rule of this motion New *7 made, filing transcript the time for the for a new trial has judgment begins appeal from to run from the date of on disposing new.trial, a entry of the motion for so as to order appeal therefrom; transcript immediate forty days is not appeal from filed within there- after, appeal must be dismissed. from Required.—The appellant op Entry op Order Id.—Notice any one, party, adverse or from entitled to notice from the trial, filing, entry denying the order but making, new and inform himself thereof. The time for bound to take notice taking step proceeding of a doing of an or the act only of a in cases to run the service notice begins from provided. is so court it some law rule of Superior appeal from to dismiss MOTION County. Taggart, Judge. J. W. of Santa Barbara the сourt. stated The Crittenden, Thomas, L. and B. F. Carrier, & James Richards Appellant. Blakeman, Respondents. T. Z. Starbuck, and & Canfield Bell, Teresa administratrix SHAW, J. Bell, deceased, the estate of Thomas will annexed from dismiss court to moves superior court entered therein on Octo- made on the that the time The motion 28, 1904. ber