Majority
p. 48[Civ. No. 3070. Second Appellate District, Division One. November 19, 1920.] KATHRYN A. BENNETT, Respondent, v. MERLIN H. BENNETT, Appellant.
Headnote
[1] Divorce — Default — Interlocutory Decree — Payment of Alimony—Belief in Excess of Demand of Complaint.—Where, in an action for divorce, the prayer of the complaint was for a dissolution of the bonds of matrimony and for general relief, and the defendant made default, it was error to order in the interlocutory decree that the defendant pay the plaintiff a monthly alimony.APPEAL from a portion of an interlocutory decree of the Superior Court of Los Angeles County. Fred H. Taft, Judge. Modified.
The facts are stated in the opinion of the court.
Isaac Pacht for Appellant.
Alfred H. McAdoo for Respondent.
In this action for divorce the prayer of the complaint, to which no answer was interposed, was for a judgment dissolving the bonds of matrimony existing between the parties, and for general relief. Defendant, claiming the same to be erroneous, appeals from that part of the interlocutory decree rendered upon his default and in favor of plaintiff, whereby it was adjudged that, until the further order of the court, “defendant pay plaintiff twenty-five dollars per month alimony.”
p. 49
[1] Clearly, the trial court erred in making the order, the effect of which was to grant relief in excess of that demanded in the complaint. Not only was there an absence of any prayer for alimony, but the ■ complaint contains no allegations upon which to base such prayer. Section 580 of the Code of Civil Procedure provides that where no answer is filed by defendant, the relief granted plaintiff “cannot exceed that which he shall have demanded in his complaint.” As stated, the prayer was for a dissolution of the bonds of matrimony only, and the power of the court to grant such relief was not enlarged by the prayer for general relief against defendant who had made default. (Staacke v. Bell, 125 Cal. 309 , [ 57 Pac. 1012 ]. See, also, Cohen v. Cohen, 150 Cal. 99 , [11 Ann. Cas. 520, 88 Pac. 267 ]; Foley v. Foley, 120 Cal. 42 , [ 65 Am. St. Rep. 147 , 52 Pac. 122 ]; Benton v. Benton, 122 Cal. 395 , [ 55 Pac. 152 ].)
The decree is modified by striking therefrom the following clause: “It is further ordered that until the further order of the court defendant pay plaintiff twenty-five dollars per month alimony.”
Conrey, P. J., and James, J., concurred.
Cases cited
- Staacke v. Bell 125 Cal. 309 p. 49
- Cohen v. Cohen 150 Cal. 99 p. 49
- Benton v. Benton 122 Cal. 395 p. 49