100 Cal. 11 | Cal. | 1893
Lead Opinion
This is an action for a divorce and a division of the community property. It is alleged that F. R. Warner, who is joined as a defendant with the husband of the plaintiff, received from the husband a fraudulent conveyance of certain real property, situated in San Bernardino county, with the intent to defraud the plaintiff of her community interest therein. The prayer is for a divorce, a cancellation of the conveyance, and a division of the property fraudulently conveyed. The action was brought in the county of San Bernardino, the complaint alleging that the plaintiff had resided in the state for more than one year and in the county of San Bernardino for more than three, months next preceding the commencement of the action.
The court on motion of the defendants changed the place of trial from San Bernardino to Los Angeles county, upon the sole ground that the defendants were residents of the latter county.
Appellant contends that under section 128 of the Civil Code an action for divorce must be brought in the county of the plaintiff's residence, and cannot be removed therefrom except on account of the convenience of witnesses, or where it is made to appear that an impartial trial cannot be had, or that the judge of the county is disqualified from acting.
The section referred to, as originally incorporated into the codes, provided that “a divorce must not be granted unless the plaintiff has been a resident of the state for six months next preceding the commencement of the action.” As amended by the Act of March 10, 1891, it now reads that “ a divorce must not be granted unless
It is said it would lead to an absurdity to hold that a husband could compel his wife to bring an action in a county other than the one in which he lived—in the county wdiere she resides—and afterwards on his own motion have the cause removed to the county of his residence; but in making this new provision the legislature was looking out for the interests of the public, as well as the interests of the parties. Prior to the passage of this amendment reproach had been brought upon the administration of our divorce laws by the frequency of proceedings commenced by complainants in counties where neither of the parties resided, the purpose being generally to avoid notoriety in the community where the plaintiff was known, and in some instances to obtain a decree by collusion, or to vex the defendant, or make it impossible or inconvenient for him or her to present a defense. It was the purpose of the amendment to correct this abuse. The state has an interest in the result of such cases. The public welfare demands that the bonds of matrimony should not be lightly set aside, and there is less probability of successful collusion or unfair advantage where the parties have both resided and are known than there is in a county where neither has resided, and which the plaintiff may select for the purpose solely of procuring a divorce. It is true, before the amendment, a defendant had the right to have the cause transferred to his or her place of residence for trial, and to this extent the defendant’s rights were protected; but the amendment tends to discourage the practice referred to, saves the defendant in a great many instances from the necessity and expense of moving for a change of the place of trial, and renders it less probable that the parties will allege or admit grounds of divorce which their friends and neighbors know to be false. Thus are the interests of not only the defendant but of the public in a measure protected.
The inconvenience and injustice suggested by appellant is more fancied than real. The cases in which the plaintiff will be put to inconvenience must necessarily be rare. Furthermore, vhen the question of inconvenience is considered it will be found not entirely one sided. A party desiring to secure a divorce may, under the construction claimed by appellant, by establishing a residence in a distant county, put the defendant to the trouble and expense of having the case tried away from the place of his residence, unless he can show inconvenience of witnesses or disqualification of the judge.
But all such speculation has nothing to do with the
It is further contended by the appellants that the action, being one in part to set aside a fraudulent sale • and conveyance of land, necessarily involves the determination of a right or interest in real property, and therefore comes within the provision of section 392 of the Code of Civil Procedure. That section provides that an action. “ for the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest,” must be tried in the county in which the subject of the action is situated, subject to the power of the court to change the place of trial.
The object of the action, however, was not simply to procure the cancellation of the deed and reconveyance of the property. Another and probably much greater object was to secure a dissolution of the bonds of matrimony, and, so far as this last matter was the subject of the action, the proper county for the trial thereof was the county of the defendant’s residence. It has been held here that if real and personal actions are joined in the same complaint the case falls within section 395 of the Code of Civil Procedure, and must be tried in the county of the defendant’s residence. (Smith v. Smith, 88 Cal. 572; Ah Fong v. Sternes, 79 Cal. 33; Le Breton v. Superior Court, 66 Cal. 30.)
The defendant, F. R. Warner, might perhaps have insisted upon the action being retained in the county of San Bernardino for trial; but if any such right existed he waived it by joining the other defendant in the application for a transfer to Los Angeles county. (O’Neil v. O’Neil, 54 Cal. 187.)
The order is affirmed.
McFarland, J., and Fitzgerald, J., concurred.
De Haven, J,—I dissent from the judgment.
Dissenting Opinion
I dissent. There was no demand in writing for a change of the place of trial ever filed by the defendants, or either of them; and such demand has more than once been held by this court to be essential to the validity of an order changing the place of trial. (Code Civ. Proc., sec. 396; Estrada v. Orena, 54 Cal. 407; Byrne v. Byrne, 57 Cal. 348.)
As to the point discussed in the opinion of the court I concur in the main in the views expressed by Justice Paterson; but, for the reason above stated, I must dissent from the judgment of affirmance.
Concurrence Opinion
I think the order appealed from should be affirmed. In my opinion the amendment of 1891 to section 128 of the Civil Code was intended to prescribe a residence of three months in some particular county as a jurisdictional condition to be shown by the plaintiff before he should be entitled to a divorce, just as the previous requisite, which is also retained, of six months’ residence in the state is a jurisdictional condition to entertaining his application for a divorce. The right to a divorce is particularly a matter of statutory creation,, and the legislature has the same right to prescribe the conditions in procedure upon which a suit shall be instituted in its courts as it has to limit the causes for which the divorce may be granted.
This construction of the section is consistent with the provisions of the Code of Civil Procedure for changing the place of trial of the action after it has been brought, and gives full force to the several provisions of both codes.
No objection was made in the court below to the absence of a demand in Avriting for a change of the place of trial, and, as the bill of exceptions states that a “ notice in due form” of the motion therefor was filed by the defendant, it can be assumed here that the notice included a proper demand,