33 Cal. 353 | Cal. | 1867
This appeal is taken from a decree of divorce, made on the ground of adultery on the part of the wife. The decree does not state whether the divorce is from bed and board, or from the bonds of matrimony; and it is insisted that it is not only erroneous but void for that reason. Where a term has two meanings differing in the degree merely, it is to be understood in the larger sense wherever it occurs unless it appears to have been used in the narrower sense, by some form of direct expression, or from the context, the nature of the subject matter, or the res gestee. The term “ divorced,” as it occurs in the decree, imports a dissolution, in the largest sense, of the marriage relation between the parties. The term is not answered by a divorce in part, or to a limited intent only, but calls for a complete severance of the tie by which the parties were united.
The objection that the judgment is invalid for the reason that it does not appear that the defendant was not defaulted, is- not well taken. If the taking of a default was essential to the orderly conduct of the proceedings, we must presume that one was taken, inasmuch as the contrary does not appear.
The objection that the Court erred in awarding all the
Judgment affirmed.
Mr. Chief Justice Currey did not express an opinion.