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Musselman v. Musselman

140 Cal. 197 Court Department One. Decision date 1903-09-11 Docket L. A. No. 1096 English

Delivered by SHAW, J.

Contents

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p. 197
[L. A. No. 1096.
Department One.
September 11, 1903.]
CLARA MUSSELMAN, Respondent, v. HIRAM MUSSELMAN et al., Appellants.

Headnote

Divorce — Decree awarding Property — Recitals — Findings not Waived.—In an action for divorce, where the recitals in the decree sustain the judgment of divorce, but there are no findings nor recitals to justify the judgment awarding certain common property to the plaintiffs, and the bill of exceptions affirmatively shows that findings were not waived, the decree is unsupported as to the property, and must be reversed for further proceedings in relation to the interests of the spouses in the community property.
APPEAL from a judgment of the Superior Court of Los Angeles County. M. T. Allen, Judge.
The facts are stated in the opinion of the court.
Will D. Gould, for Appellants.
Homer C. Millsap, for Respondent.

This was an action by the plaintiff to obtain a divorce from the defendant Hiram Musselman, and a decree that a portion of the community property be set apart to her as her share thereof. It is alleged that the other defendants combined with the defendant Hiram to defraud the plaintiff of her rights as a wife in the community property. Judgment was given in favor of the plaintiff for a divorce, and that a certain part of the property be set apart to her, and for costs, and that Hiram Musselman pay all costs. The appeal is limited to that portion of the judgment relating to the property set apart and for costs. The only point made upon the appeal is, that findings were not waived, and that no findings were filed. Separate findings were not filed,- and the bill of exceptions affirmatively shows that findings were not waived, but it is recited in the decree that all the material allegations in the complaint are sustained by the testimony. This is insufficient. (Ladd v. Tully, 51 Cal. 277 ; Hardenberg v. Hardenberg, 54 Cal. 591 ; Cassidy v. Cassidy, 63 Cal. 352 .) There are further statements by way of recital

p. 198
in the decree which would sustain the judgment as to the divorce, but there is nothing which would operate to justify the judgment for the property. For these reasons that portion of the judgment which declares that certain property described be allowed the plaintiff and set apart to her for her portion of the community property is reversed, and the cause ■remanded for further proceedings in the court below with relation to the interests of the plaintiff in the community property of the spouses. The decree awarding the divorce, which is not appealed from, and which is sustained by the. recitals, which operate as findings, is sufficient to carry the costs. Consequently, that part of the decree giving judgment against Hiram Musselman in favor of the plaintiff for costs, is affirmed.

Angellotti, J., and Van Dyke, J., concurred.

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