Stone v. Stone

The defendant’s demurrer to the amended complaint was sustained with ten days leave to

The complaint alleges that prior to December 17, 1919, the parties were husband and wife; that at the time of the commencement of the action for divorce hereinafter referred to, the parties owned community property “consisting of money in bank and bonds and securities and other property, all of which was, at all times herein mentioned, well known to defendant”; that such money was “deposited in a joint bank account of the said parties . . . payable to either of said parties”; that “at some time subsequent to April 1, 1918, the exact time or times being unknown to this plaintiff, defendant herein, . . . without the knowledge or consent of plaintiff herein, . . . willfully and wrongfully withdrew the whole of the said community property and funds . . . and converted the same to her own use, and converted the same into other forms of property, or deposited or placed the same in another bank or in other banks,” and mingled the same with other funds belonging to the defendant, “so that defendant herein then and there constituted herself in appearance the absolute owner of the said total sum”; that July 23, 1918, defendant commenced an action -for divorce against plaintiff; that in her complaint she alleged “that there is no community property belonging to the parties herein”; that the prayer of the complaint was for a decree of divorce and “for any further relief that this court may deem meet”; that plaintiff herein was not served personally in that action, but that service was made by publication; that plaintiff had no notice and was without knowledge of the allegations contained in the complaint therein “until about the month of January, 1919”; that the defendant omitted to mention such community property in her divorce complaint “with intent then and there to cheat and defraud plaintiff herein ... of his right and interest in and to” such community property; that defendant was granted an interlocutory decree of divorce December 3, 1918; that in the divorce action the court found “that all the allegations and averments of the complaint are true”; that the divorce was

[1] The alleged fraudulent allegation that there was no community property constituted intrinsic and not extrinsic fraud. (Benning v. Nevis, 56 Cal. App. 192 [ 204 Pac. 866 ], and cases cited therein.) Since intrinsic fraud is not ground for the attack upon, the judgment, the allegation of such fraud may be eliminated from consideration.

[2] In Brown v. Brown, 170 Cal. 1 [ 147 Pac. 1168 ], and Brown v. Brown, 170 Cal. 8 [ 147 Pac. 1171 ], the court held that where the complaint in an action for divorce alleges that there is no community property and the defendant, after personal service, makes default and final judgment is rendered dissolving the marriage but making no order, direction, or even mention of property or other right, such judgment operates as an adjudication that at the time the action was begun there was no community property. In that case the service on the defendant was personal, in this it was by publication and the defendant had no actual knowledge of the contents of the complaint until a month after the interlocutory decree was entered. In the Brown case the divorce was granted on the ground of willful neglect, in this on that of extreme cruelty. In other respects the two cases are identical in principle.

[3] Appellant relies on the provision of section 580 of the Code of Civil Procedure that “the relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint,” and Staacke v. Bell, 125 Cal. 309 [ 57 Pac. 1012 ], to the effect that the prayer for general relief cannot “enlarge the power of the court, to grant relief not prayed for against a defaulting defendant.” In Cohen v. Cohen, 150 Cal. 99 , 102 [11 Ann. Cas. 520, 88 Pac. 267 , 269], it is said: “Section 580 of the Code of Civil Procedure . . . does not make the judgment void in a case where the relief given is

The fact that the summons was served by publication rather than personally is not material under the facts of this ease. “The presumption in support of a judgment of a court of general jurisdiction is not made to depend upon the way in which a summons is required to be served.” (McHatton v. Rhodes, 143 Cal. 275 , 279 [ 101 Am. St. Rep. 125 , 76 Pac. 1036 , 1038].) Appellant contends, however, that his allegation that the service of summons was by publication is at least a defective and informal allegation that the defendant in the action for divorce was a nonresident and that, therefore, the court was without jurisdiction to adjudicate the property rights of the parties, citing De La Montanya v. De La Montanya, 112 Cal. 101 [ 53 Am. St. Rep. 165 , 32 L. R. A. 82 , 44 Pac. 345 ]. Whether or not the fact of nonresidence is material in such a ease, the allegation in- question cannot be construed as the averment that defendant was a nonresident. Section 412 of the Code of Civil Procedure provides for the service of summons by publication where the defendant “resides out of the state; or has departed from the state; or cannot, after due diligence, be found within the state; or conceals himself to avoid the service of summons.” The court cannot presume that publication of summons was ordered by reason of nonresidence or absence from the state rather than upon the other grounds justifying such publication. The presumption is that the plaintiff pleaded all the facts which would tend to support his cause of action. He filed a complaint and an amended complaint and was granted leave to again amend. If he in fact was absent from the state or a nonresident at the time of service of summons in the action

There being no difference in principle between this ease and the Brown cases, the decisions in those eases must control in this.

The judgment is affirmed.

Burnett, J., and Prewett, J., pro tem., concurred.