54 Cal. App. 2d 398 | Cal. Ct. App. | 1942
Respondent commenced this action against his wife for divorce based upon the ground of desertion. Appellant wife answered, denied the allegations of respondent’s complaint and by way of cross-complaint alleged: (1) extreme cruelty; (2) habitual intemperance; and (3) wilful neglect on the part of respondent. After hearing the evidence produced, the trial court refused to grant a divorce to respondent or cross-complainant and appellant and denied her a judgment for support and maintenance. Cross-complainant appealed from that portion of the judgment denying her a divorce or any relief by way of maintenance or support.
Appellant and respondent were married in 1908. They have four children, all of the age of majority. The parties hereto accumulated some property in the State of Oregon, where they resided. About January 1st, 1939, appellant
In support of her allegation of cruelty, appellant produced evidence, consisting mainly of her own testimony, of a quarrel between appellant and respondent which occurred in Oregon shortly before their separation and at the time when the mutual deeds to the property above mentioned were exchanged.
Appellant testified that on December 28, 1938, at about 5:30 p. m., Mr. Winkler came home from his work; that their boy Winifred was present with a friend of his on that occasion; that the family were in the habit of eating their evening meal at 6 p. m.; that on respondent’s arrival home he immediately demanded his supper; that he grabbed a frying pan; that appellant told him that dinner was not ready but it would be at 6 o’clock; that as the outgrowth of this argument Mr. Winkler set the frying pan down, grabbed appellant by the arm and shook her; that she screamed and her son came in from the front room; and that respondent was threatening her and using bad language. She then testified that “until he got so rough that I kept saying a little louder every time he would shake me —squeeze my arm and shake me—until I spoke so loud that my son came in, and he had his fist drawed back on me and my son said, ‘Don’t hit her,’ or ‘Don’t strike her,’ I don’t know which words he used. Then he yelled to him and he ordered him out of the house and my son says, ‘Do you mean it, Dad? If you do, I will go.’ . . . they kept arguing backward and forth and they had their fists drawed on each other and finally he said, ‘I will put you out of here,’ said, ‘I got something I can put you out of here,’ and he run for his gun. He stepped inside his bedroom door and picked up the gun and made the remark, says, ‘I am ready for you.’ And I said ‘Winnie, don’t do that.’ I says, ‘Please go outside; don’t let this happen to me.’ I said, ‘Don’t let this happen to me,’ and he stepped outside. His father came in with the gun and just hunted for him like he was a dog, with the gun in his hand ready to shoot, and he looked all around in that room and I said, ‘He is not in here.’ He
One other witness testified that one time in Oregon when Mr. Winkler came home he “tried to force Mrs. Winkler to drink”; that she refused to drink with him; that he “poured it, spilled it on her face, and the liquor, whatever it was, ran down.” This was in 1932.
After considering the evidence presented, the trial court announced that respondent did not make out a case of de
Counsel for appellant then announced that the boy, Winifred was on vacation and would be back in ten days; that “Since your Honor has indicated how he feels about the matter, I think in fairness to both parties we should have the testimony so that we can get this definitely settled and prevent future action. I therefore move for a continuance of two weeks until the boy returns so that we can put that evidence on.” The court then remarked that “there ought to have been an application before the case was brought to trial. Motion denied.”
On a motion for a new trial counsel for appellant made an affidavit that on September 15, 1941, he received notice that the case was set for trial on September 19, 1941; that “Winifred Winkler . . . was on vacation at that time and could not be located; that he was not within the County of San Diego and could not be reached by any form of communication; that the defendant sent telegrams in an effort to have him here for the trial, but could not contact him in time; that affiant was informed by the defendant that it was very probable that the said Winifred Winkler would return in time to appear as a witness on the 19th of September, the trial date . . . that affiant believed said witness would appear in time "to testify . . .; that affiant called the court’s attention to the absence of said witness on the trial date and on that day requested an opportunity to produce the testimony of said witness. That the said witness . . . has now returned to San Diego County, that he is now and will be available to testify in this action to the facts as set forth in his affidavit filed herewith.” The affidavit of the witness above mentioned recites generally that in Decern
The facts set forth in these affidavits were not denied by respondent and no counter-affidavits were filed. The trial court nevertheless denied the motion for new trial. The only question here presented is whether it abused its discretion in refusing to reopen appellant’s case for the purpose of presenting the evidence offered and in denying her motion for a new trial under the circumstances here related.
While these orders are not appealable they are reviewable on an appeal from the judgment. (§ 956 Code Civ. Proc.; Lewith v. Rehmke, 217 Cal. 563 [20 P. (2d) 687].) It has often been held that it is not entirely necessary that all the evidence of the prevailing party in a divorce action be corroborated. (Keller v. Keller, 132 Cal. App. 343, 348 [22 P. (2d) 798]; Bastjan v. Bastjan, 215 Cal. 662, 664 [12 P. (2d) 627].)
In White v. White, 86 Cal. 219 [24 Pac. 996], it was stated (quoting from syllabus):
“Though the court cannot grant a divorce on the ground of extreme cruelty of the husband upon the uncorroborated testimony of the wife, it is not under such restraint when considering whether the leaving of the husband by the wife*404 constituted wilful desertion or was justified by his cruel treatment, and upon that issue the court may believe the uncorroborated testimony of the wife as against the testimony of the husband.”
The trial court found that appellant refused and neglected to furnish cross-complainant with the common necessaries of life, but that “during the times therein mentioned defendant and cross-complainant was living separate and apart from plaintiff and cross-defendant and therefore not entitled to support from him.” The court then found that she did not desert respondent and that the respondent did not desert her. We fully recognize the general rule that a court has a wide discretion in passing upon such motions as were here presented. Nevertheless, these motions should be examined, not only in accordance with legal principles, but in accordance with the ends of justice. Counsel for appellant proceeded to trial believing he had sufficient corroboration of his client’s testimony. Due to her illness and extreme nervousness, he thought it advisable to proceed under these circumstances without the presence of the boy whom he expected would return before the case was finally completed. Counsel’s inadvertence in this respect should be considered and appellant should not necessarily be deprived of her right to the benefit of the testimony of her son under the facts of this case.
Considering all of the testimony before the trial court and the most substantial corroboration offered by the son, if true, it would appear to us that the appellant would be entitled to a decree of divorce, at least. From the evidence and the affidavit presented, had a new trial been granted, a different decision would no doubt have been reached. We believe, under the peculiar circumstances here existing, the trial court should have granted a continuance of the case for the purpose of hearing the evidence offered or, upon the showing made by the undenied affidavits considered by the court, it should have granted a new trial for the purposes suggested. It is our belief that the ends of justice would have been better subserved by so doing and that the court’s refusal so to do amounted to an abuse of discretion. (Christina v. Daneri, 22 Cal. App. (2d) 190 [70 P. (2d) 983]; Leslie v. Federal Finance Co., Inc., 14 Cal. (2d) 73, 82 [92 P. (2d) 906]; Spear v. United Railroads, 16 Cal. App. 637 [117 Pac. 956].)
For the reasons given the portion of the judgment appealed
Barnard, P. J., and Marks, J., concurred.