Lowell v. Lowell, No. 6,728

No. 6,728 | Cal. | Jul 1, 1880

McKinstry, J.:

These are cross-appeals, the plaintiff appealing from the whole judgment, and the defendant from that portion thereof which decrees the defendant to pay the sum of $100 to A. C. Freeman, attorney for plaintiff, for services rendered.

Defendant’s counsel moved to dismiss the appeal of plaintiff, on the ground that the undertaking on appeal was not filed within one year after the judgment was entered.

An appeal is taken by filing and service of the notice, but it is effectual for no,purpose until the undertaking is filed. The failure to file the undertaking within the time prescribed by the Code of Civil Procedure renders the notice nugatory, but if filed within that time the appeal is well taken. (Peran v. Monroe, 1 Nev 484 ; McCreery v. Everding, No. 5,046. See, also, Holcomb v. Sawyer, in which case a rehearing was granted, and the question decided as herein, but the original opinion in which was reported by mistake, at 51 Cal. 417" court="Cal." date_filed="1876-07-01" href="https://app.midpage.ai/document/holcomb-v-sawyer-5438996?utm_source=webapp" opinion_id="5438996">51 Cal. 417.)

The action was brought by plaintiff to obtain a divorce from defendant, a partition of their homestead, for alimony, and for maintenance of her child, and to be let into possession of the homestead. Defendant, by way of cross-complaint, alleged desertion by plaintiff. The Court granted defendant a divorce from plaintiff, and decreed that the certificate of homestead be set aside and annulled, and that plaintiff have no interest in the homestead property.

1. The third denial of the answer is a denial of the material fact stated in the sixth allegation of plaintiff’s complaint, to wit: That the real estate described therein was the homestead of the parties.

2. It is urged that inasmuch as the same Court, on the 25th day of September, 1875, had decided that the plaintiff had not deserted defendant, finding five, that plaintiff had deserted defendant June 6th, 1873, is not sustained by the evidence. The desertion alleged in the cross-complaint is of February, 1877. The Court (finding sixth) finds that on that day plaintiff willfully deserted defendant, and has ever since willfully deserted and lived apart from him, and refused to cohabit, etc. If the facts recited in finding fifth can be held to be the equivalent of a finding that a desertion by plaintiff commenced in 1878, and such finding cannot be upheld for the reason mentioned by plaintiff’s counsel, still, the desertion beginning in February, 1877, may be maintained, notwithstanding the prior adjudication. Giving the utmost effect to the prior judgment, it was a finding that the desertion had not continued for the statutory period when the former action was commenced.

■ 3. The answer alleges that the real property, described in the sixth allegation of plaintiff’s complaint as a homestead, is the separate property of defendant. The decree properly provided for the preservation of the property to defendant.

The portion of the judgment directing the payment of money to plaintiff’s attorney is not erroneous. (Civ. Code, § 137 : Code Civ. Proc. § 1049.)

Judgment affirmed.

McKee, J., and Boss, J., concurred.