182 P. 776 | Cal. Ct. App. | 1919
The appeal is from an order denying a motion for change of place of trial. The plaintiff wife sought divorce on the ground of extreme cruelty, and joined as a defendant her husband's brother, alleged to be the fraudulent grantee of the husband. The brother alone moved to change the place of trial.
The plaintiff alleged the husband is the owner of a one-third interest in four promissory notes of the aggregate face value of nearly fourteen thousand dollars, secured by mortgages and deeds of trust, and in certain described lands, some of which are in Stanislaus County and some in Tuolumne County. It is further alleged that on January 31, 1917, some eight months before suit was brought and three months before the separation of the parties, the husband purported to grant and convey to his brother, the appellant, upon no consideration, all the property without the knowledge of the plaintiff, and with the intent of defrauding her of her right to subject the same to her claim for maintenance, support, and alimony. After praying for a divorce the plaintiff prayed for a monthly sum for her support and lump sums for counsel fees and costs. She further prayed the conveyance and *767 transfer of her husband to his brother be decreed to be fraudulent and void as to her, and that a lien be imposed upon the property as security for the payment of such sums as may be directed by the court to be paid by the husband to her for support, counsel fees, and costs.
The appellant moved for change of place of trial on the ground that San Francisco, the place of residence of the plaintiff, is not the proper county, and that Stanislaus is the proper county, by reason of the residence of H. P. Weyer there. Further, that as to him, the action is for recovery of real property and the determination of the right or interest of the plaintiff therein, and that all the real property is in the counties of Stanislaus and Tuolumne.
The argument on behalf of the appellant in substance is that section 5 of article VI of the constitution provides that all actions for the recovery of possession of, or for the enforcement of liens upon, real property must be commenced in the county where the real property is situated, and, under Code of Civil Procedure, section
[1] The statute required the action for divorce to be brought in the county of the residence of the wife. [2] If the suit were, as claimed on behalf of the appellant, one involving two separate causes of action, and the second cause of action were for the recovery of the property, under the constitutional provision the second cause of action would necessarily have been brought in one of the counties in which the land is, and it would follow under the provisions of section 427 of the Code of Civil Procedure that the two causes could not be joined. There are not two causes of action. The case is not within the provisions of section 5 of article VI of the constitution or section
The appellant contends there is a different principle involved where separate property of the husband is conveyed from that where the property belonged to the community, and, further, that regardless of the power of a court of equity in a suit for maintenance, or more properly alimony, without divorce, there can be no joinder such as is here made in a suit for divorce. The legislature has dealt with this subject. Even though divorce is denied, the court in the divorce action may provide for the maintenance of the wife (Civ. Code, sec. 136); it may provide for alimony pending the suit (Civ. Code, sec. 137); and for maintenance after divorce (Civ. Code, sec. 139). The court may require reasonable security for providing maintenance or making any payments required under the provisions of the chapter, and may enforce the same by an appointment of a receiver, or by any other remedy applicable to the case (Civ. Code, sec. 140). In executing the preceding sections, the court must resort (1) to the community property; then (2) to the separate property of the husband (Civ. Code, sec. 141). The appellant asserts that it appears in this case the property transferred by the husband was his separate property. It further appears negatively from the complaint there was no community property to which the court might resort for the maintenance of the wife. [4] In the absence of an allegation that there is community property, the presumption is there was none. No such allegation is made in the complaint in the present case. (Kashaw v. Kashaw,
In Kashaw v. Kashaw, supra, the wife sued for divorce, joining certain other defendants to whom it was claimed by the wife the husband, with intent to defraud her of her community rights, had conveyed community property. It was contended there, as here, that the bill was multifarious. Basing its decision upon the then existing act in relation to husband and wife, which required a division of the community *769
property, the supreme court said: "It seems, from this, to be beyond dispute, that a partition of the common property is one of the direct results of a decree for divorce, and is part and parcel of the decree to be rendered, and consequently is necessarily one of the proper subjects of the action. How, then, can its introduction render the bill subject to the charge of multifariousness? The bill would really not be perfect without it, for the purpose of obtaining the decree of division, as contemplated by the law. . . . And as the one-half of it is equitably the right of the plaintiff, and to be so determined in this case, she may well make a party of anyone claiming an interest in it, in order that she may obtain a complete determination." In the present case, as there is no community property, it is the duty of the court to make provision for the wife out of the separate property of the husband. The reasoning of the court in the Kashaw case is directly applicable. Where the reason is the same, the rule should be the same. (Civ. Code, sec.
The rule of Kashaw v. Kashaw has never been questioned. It has been made the basis of numerous decisions in other jurisdictions. It is cited as a leading case in a note appended to a case decided in Alabama, where it was held that a bill for divorce was not rendered multifarious by a prayer for a conveyance by the husband to the wife of lands paid for by her with the title resting in him. (Singer v. Singer, [
Mr. Justice McFarland, after the decision ofCummings v. Cummings, said: "The very purpose of alimony in such a suit is to give support to the wife and to enable her to conduct her side of the litigation pending the trial of the issues made *771
by the pleadings." (Storke v. Storke,
In regard to the claim that the suit in so far as it affected the appellant's interest in real property was within the provisions of section
In that case the plaintiff wife was a resident of San Bernardino. The real property was also in that county. F. R. Warner was joined as the alleged fraudulent grantee of C. A. Warner, the husband. The defendants sought to have the suit removed to their place of residence. The case was decided upon the construction of section 128 of the Civil Code, requiring the residence of the plaintiff in the county in which the action is commenced, and sections
The order appealed from is affirmed.
Langdon, P. J., and Haven, J., concurred.