208 P. 993 | Cal. Ct. App. | 1922
The defendant's demurrer to the amended complaint was sustained with ten days leave to *416 plaintiff to amend. On plaintiff's failure to amend within the time allowed, judgment was entered in favor of defendant. From this judgment the plaintiff appeals. The sole question presented is whether the amended complaint states a cause of action.
The complaint alleges that prior to December 17, 1919, the parties were husband and wife; that at the time of the commencement of the action for divorce hereinafter referred to, the parties owned community property "consisting of money in bank and bonds and securities and other property, all of which was, at all times herein mentioned, well known to defendant"; that such money was "deposited in a joint bank account of the said parties . . . payable to either of said parties"; that "at some time subsequent to April 1, 1918, the exact time or times being unknown to this plaintiff, defendant herein, . . . without the knowledge or consent of plaintiff herein, . . . willfully and wrongfully withdrew the whole of the said community property and funds . . . and converted the same to her own use, and converted the same into other forms of property, or deposited or placed the same in another bank or in other banks," and mingled the same with other funds belonging to the defendant, "so that defendant herein then and there constituted herself in appearance the absolute owner of the said total sum"; that July 23, 1918, defendant commenced an action for divorce against plaintiff; that in her complaint she alleged "that there is no community property belonging to the parties herein"; that the prayer of the complaint was for a decree of divorce and "for any further relief that this court may deem meet"; that plaintiff herein was not served personally in that action, but that service was made by publication; that plaintiff had no notice and was without knowledge of the allegations contained in the complaint therein "until about the month of January, 1919"; that the defendant omitted to mention such community property in her divorce complaint "with intent then and there to cheat and defraud plaintiff herein . . . of his right and interest in and to" such community property; that defendant was granted an interlocutory decree of divorce December 3, 1918; that in the divorce action the court found "that all the allegations and averments of the complaint are true"; that the divorce was *417 granted on the ground of extreme cruelty; that "the disposition of the community property . . . was not made a part of, or determined by, either the interlocutory decree or the final decree made and entered in said action"; and that the respective rights of the parties in and to such community property has never been settled by agreement or otherwise. The prayer is for an adjudication of the rights of the parties in and to the community property and for other relief incidental thereto.
[1] The alleged fraudulent allegation that there was no community property constituted intrinsic and not extrinsic fraud. (Benning v. Nevis,
[2] In Brown v. Brown,
[3] Appellant relies on the provision of section
The fact that the summons was served by publication rather than personally is not material under the facts of this case. "The presumption in support of a judgment of a court of general jurisdiction is not made to depend upon the way in which a summons is required to be served." (McHatton v. Rhodes,
There being no difference in principle between this case and the Brown cases, the decisions in those cases must control in this.
The judgment is affirmed.
Burnett, J., and Prewett, J., pro tem., concurred.