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Musselman v. Musselman

3 Cal. App. 30 Court Second Appellate District. Decision date 1906-02-06 Docket Civ. No. 181 English

Delivered by SMITH, J.

Contents

Majority

p. 30
[Civ. No. 181.
Second Appellate District.
February 6, 1906.]
CLARA MUSSELMAN, Respondent, v. HIRAM MUSSELMAN et al., Appellants.

Headnote

Practice—Amendment to Complaint—Failure to Serve—Failure to Object to Evidence—Divorce.—In an action for divorce and for a division of the community property, the defendant cannot, on appeal from the judgment, object to the nonserviee of an amendment to the complaint in which the property allotted to the plaintiff was for the first time described, when evidence with reference to such property was introduced on the trial without objection.
APPEAL from a judgment of the Superior Court of Los Angéles County. M. T. Allen, Judge.
The facts are stated in the opinion of the court.
Will D. Gould, for Appellants. .
H. C. Millsap, for Respondent.

This is a suit for divorce, and was before the supreme court on an appeal from a former judgment for the plaintiff for divorce and for allotment of community prop

p. 31
erty. (Musselman v. Musselman, 140 Cal. 197 , [ 73 Pac. 824 ].) The appeal resulted in a reversal of “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,” and the cause was remanded “for further proceedings in the court below with relation to the interests of the plaintiff in the community property of the spouses. ’ ’ The case was .tried on these issues in the court below, and findings and judgment entered for the plaintiff, by which certain property, real and personal, was adjudged to be community property, and an allotment of certain real and personal property to the plaintiff made. The appeal is from the judgment, with bill of exceptions.

The findings are attacked as not supported by the evidence, but this contention, we think, cannot be sustained.

Objection is also made that an amendment to the complaint, in which the real, and part of the personal, property allotted, to the plaintiff was for the first time described, was not served upon the defendants; but the evidence with reference to this property was introduced without objection, and we think it is now too late to complain of the omission.

The judgment appealed from is affirmed.

Gray, P. J., and Allen, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal was denied by the supreme court on April 4,1906.

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