Musselman v. Musselman

73 P. 824 | Cal. | 1903

This was an action by the plaintiff to obtain a divorce from the defendant Hiram Musselman, and a decree that a portion of the community property be set apart to her as her share thereof. It is alleged that the other defendants combined with the defendant Hiram to defraud the plaintiff of her rights as a wife in the community property. Judgment was given in favor of the plaintiff for a divorce, and that a certain part of the property be set apart to her, and for costs, and that Hiram Musselman pay all costs. The appeal is limited to that portion of the judgment relating to the property set apart and for costs. The only point made upon the appeal is, that findings were not waived, and that no findings were filed. Separate findings were not filed, and the bill of exceptions affirmatively shows that findings were not waived, but it is recited in the decree that all the material allegations in the complaint are sustained by the testimony. This is insufficient. (Ladd v. Tully, 51 Cal. 277; Hardenberg v.Hardenberg, 54 Cal. 591; Cassidy v. Cassidy, 63 Cal. 352.) There are further statements by way of recital in the decree which would sustain the judgment as to the divorce, but there is nothing which would operate to justify the judgment for the property. For these reasons that portion of the judgment which declares that certain property described be allowed the plaintiff and set apart to her for her portion of the community property is reversed, and the cause remanded for further proceedings in the court below with relation to the interests of the plaintiff in the community property of the spouses. The decree awarding the divorce, which is not appealed from, and which is sustained by the recitals, which operate as findings, is sufficient to carry the costs. Consequently, that part of the decree giving judgment against Hiram Musselman in favor of the plaintiff for costs, is affirmed.

Angellotti, J., and Van Dyke, J., concurred.