86 Cal. 219 | Cal. | 1890
Lead Opinion
— 1. This is an action for a divorce upon the alleged grounds of adultery and willful desertion, brought by the husband against the wife. The defendant filed an answer and cross-complaint, in which she denied the charges made against her in the complaint, and, alleging adultery, willful neglect, willful desertion, and extreme cruelty against plaintiff, prayed that she be granted a decree of divorce for those causes. The trial court found against plaintiff as to his averments of defendant's adultery and desertion, in favor of defendant as to her averments of plaintiff's adultery, neglect, and desertion, and against her as to her averment of plaintiff's extreme cruelty. Judgment was rendered denying the prayer of the complaint, and decreeing a divorce according to the prayer of the cross-complaint. Plaintiff appeals from the judgment upon the judgment roll alone. (There are also questions about community property, which will be noticed hereafter.)
As there is no evidence before us, that part of the judgment which decrees a divorce must be affirmed, unless its invalidity appears upon the face of the judgment roll. The point which appellant makes against
2. Respondent, in her cross-complaint, averred that appellant was the owner of a large amount of property, and that certain parts of it were community property; and the court decreed that the whole of the community property be awarded to respondent. And appellant con»
3. Appellant, in his answer to the cross-complaint, denied that there was any community property, and also averred that, immediately preceding the marriage, the parties entered into a written contract, properly executed and acknowledged, by which it was agreed that all property acquired by plaintiff after the marriage should be his separate property, and should in no event become community property. The court found that this con
The fact that appellant pleaded the contract in his answer made no difference, for under our system it stood as denied. But waiving the question whether there would be any merit in the point if properly presented, it is sufficient to say that, in the case at bar, there being no bill of exceptions, it must be assumed, in support of the judgment, that appellant made no objection to the introduction of evidence attacking the validity of the contract. The parties therefore must be treated, according to numerous decisions of this court, as having waived all objection, and as having tried the issue upon its merits. It is too late to make the objection here for the first time. (King v. Davis, 34 Cal. 106; Hutchings v. Castle, 48 Cal. 155.) It was perhaps going further than was necessary for the court to decree the contract a nullity; but that would be, at worst, only surplusage.
We think that the facts found by the court were sufficient to warrant the conclusion that the contract was invalid because improperly procured. Judgment affirmed,
Beatty, C. J., Fox, J., Thornton, J., and Works, J., concurred.
Concurrence Opinion
— I concur in the views expressed by Mr. Justice McFarland, but would decide the first contention on the broad ground that the cruelty referred to in section 98 of the Civil Code, and which makes the offending party the deserter, is not necessarily of the same character or grade as the “ extreme cruelty ” defined in section 94 as one of the grounds of divorce. Section 98 reads as follows: “ Departure or absence of one party from the family dwelling-place, caused by cruelty or threats of bodily harm, from which danger would be reasonably apprehended from the other, is not desertion by the absent party, but it is desertion by the other party.” This section, say the code commissioners, was “intended to settle a question discussed as doubtful in 1 Bishop on Marriage and Divorce, sections 787, 791, and 794.” If a wife quits her husband’s house under probable cause to apprehend personal violence from him, or if he, by reason of acts of cruelty, drives her from the home, it is the same as if he had thrown her out of doors. If the acts of cruelty show an intention on his part to drive her from him,he is held responsible for the natural and probable consequences of such acts, and it is as much desertion on bis part as if he had without cause left her, intending to desert her. Unless section 98 provides for a grade of cruelty other than that defined in section 94, it is entirely superfluous. The two sections would provide for one cause of action only, under two different names.