Majority
Defendant appeals from a default judgment in favor of her husband granting him an annulment of the marriage. Two notices concerning appeal were given. The first was filed May 28, 1946, and recites that defendant “desires and intends to present her appeal from the order . . . denying her motion to vacate and set aside the judgment of annulment of marriage . . . wholly on a settled statement.” The second notice filed May 31, 1946, recites that ‘ ‘defendant . . . hereby appeals . . . from the judgment . . . entered . . . and from the whole thereof.” A subsequent notice, filed June 8, 1946, gives notice of defendant’s election “to set forth the oral proceedings had in the above entitled court and cause by a settled statement, on her appeal from the judgment rendered and entered therein, in lieu of a reporter’s transcript. ’ ’
Plaintiff’s complaint is in two counts. The first count is directed toward a judgment of annulment and reads as fol
“That at the time of said purported marriage and when plaintiff’s consent thereto was given, defendant represented to plaintiff, directly and by implication, that defendant was a normal woman in all respects as generally understood between normal persons; that at said time, defendant well knew that defendant was not normal person mentally; that said defendant was, further, at one time confined to a mental institution; that defendant was not generally sound mentally or physically; that said condition of defendant was unknown to plaintiff at the time of said purported marriage; that plaintiff relied on said direct and implied representations of defendant and entered into said purported marriage upon said implied and direct representations of defendant as aforesaid; that shortly after said purported marriage, defendant indicated to plaintiff by conduct the said unsound condition of defendant; that plaintiff, upon investigation, found the true situation as to defendant’s present and past mental condition; had plaintiff known the facts as hereinbefore stated, that plaintiff would not have entered into said purported marriage, and that upon learning said true facts, plaintiff separated from defendant, and brought this action. ’ ’
In the second count plaintiff sets forth the jurisdictional facts; alleges that the parties were married in San Rafael, Marin County, California; that there are no children and there is no community property, and charges defendant in general terms with extreme cruelty. The prayer is that the “marriage be declared null and void; or that the bonds of matrimony between plaintiff and defendant be dissolved.”
No appearance was made by defendant and the action came on for trial as a default matter. Plaintiff and one other witness testified, whereupon the court, on March 7, 1946, granted plaintiff judgment annulling the marriage. After the judgment was filed and recorded, defendant filed a notice of motion to vacate and set aside her default and the judgment on three grounds; “(1) that said default and judgment, and each of
This notice of motion was accompanied by an affidavit sworn to by defendant’s attorney, but it was not accompanied by an answer or any other pleading sought to be filed. Inasmuch as there was raised no question of jurisdiction predicated upon lack of or irregularity in service of summons, the motion must be considered as having been made pursuant to the provisions of section 473, Code of Civil Procedure. That section provides that if an application for relief pursuant to its provisions is not accompanied by an answer or other pleading to be filed, the application shall not be granted. Since here no answer or pleading accompanied defendant’s application, her motion was properly denied.
Defendant raises two further points: (1) That the complaint is insufficient in that it contains only the allegation that the parties were purportedly married, and (2) that the evidence is insufficient to sustain a judgment of annulment. The second point will be considered first.
In this state, an action for annulment of a marriage is purely statutory. The grounds upon which such relief may be granted are contained in section 82 of the Civil Code. The portion of that section relevant here reads as follows: “A marriage may be annulled for any of the following causes, existing at the time of the marriáge: Four. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife. ’ ’
As stated above, at the trial of this action only plaintiff and one other witness took the stand. According to the settled statement plaintiff testified as follows: “I am a resident of the City and County of San Francisco, and have been a resident of said city and county for four years. The defendant and I were married at San Rafael, Marin County, State of California, on March 22nd, 1945. I separated from her about September 18th, 1945. I knew the defendant for three months prior to the marriage. During that time I did not observe anything unusual about her behavior. After
By reason of the provisions of the Civil Code above quoted, it becomes unnecessary to consider the adequacy of this evidence to support plaintiff’s allegation of fraud, which is the ground upon which the annulment was granted. Plaintiff by his own testimony has established the fact that after the marriage the parties lived together for approximately six months, and that he discovered the alleged fraud during a six weeks’ honeymoon just after the marriage. This means that he lived with defendant at least four and a half months after the discovery. Such conduct on plaintiff’s part brings the case clearly within the vitiating provision of subdivision four of section 82, Civil Code. There is nothing in his testimony to indicate that he made any new discoveries concerning defendant’s alleged fraud after the honeymoon was over. It must therefore be assumed that he lived with her for the four and a half months with full knowledge, and there is no evidence that this cohabitation was not free and voluntary. Since the statute places no limitations on the time this free cohabitation must endure, we hold that a period of four and a half months falls within the purview thereof.
Inasmuch as the judgment must be reversed for the reasons just stated, it become unnecessary to discuss the point raised by defendant pertaining to the sufficiency of the complaint.
The judgment is reversed.
Peters, P. J., and Bray, J., concurred.