Summary
In Reading v. Reading, 96 Cal. 4, [30 P. 803], it was held that it was not necessary to set out the particular acts of intemperance in an action for divorce upon such ground.
Summary of this case from Hubbell v. HubbellOpinion
Department One
Appeal from a judgment of the Superior Court of Butte County.
COUNSEL:
W. J. Herrin, for Appellant.
P. O. Hundley, for Respondent.
JUDGES: Paterson, J. Garoutte, J., and Harrison, J., concurred.
OPINION
PATERSON, Judge
[30 P. 804] This is an action for divorce, a division of the community property, and for the custody of the children. The grounds upon which plaintiff relies are extreme cruelty and habitual intemperance. In the first count it is alleged that plaintiff and defendant intermarried at Oroville, Butte County, January 8, 1873, and that plaintiff has been a resident of the state of California for more than ten years prior to the commencement of the action. The plaintiff then proceeds to allege specific acts of cruelty by defendant, at their residence in Oroville, extending from May 8, 1884, to December, 1890. For a second cause of action, the plaintiff alleges marriage as stated above, residence of plaintiff in the county of Butte, state of California, for more than ten years immediately prior to the commencement of the action, and that "the defendant, for more than five years last past, disregarding his duties as a husband toward the plaintiff, has been guilty of habitual intemperance." The summons was served upon the defendant personally, in the county of Butte, but he made no appearance. The court found that all the facts stated in the complaint were true, and a decree was entered in favor of the plaintiff. From this decree defendant has appealed, and the case is before us on the judgment roll alone.
Appellant contends that the judgment is not supported by the allegations of the complaint, for the following reasons: 1. In the first count it is not alleged that the plaintiff was "a resident of the county for three months next preceding the commencement of the action" (Code Civ. Proc., sec. 128), and as there is no reference to the allegations of the second count, no cause of action is stated in said first count; and 2. That the second count does not state facts showing that defendant has been guilty of habitual intemperance, the allegation in that regard being a mere conclusion of law.
It has been held here that each cause of action set up must be complete in its allegations (Haskell v. Haskell , 54 Cal. 262), but that it is sufficient merely to refer to and adopt in one count the allegations made in another count. (Green v. Clifford , 94 Cal. 49.) In this case no reference is made in either count to any allegation made in the other.
While the fact is not directly and positively alleged, it is a fair inference from the averments of the first count that plaintiff and defendant resided at Oroville, Butte County, for more than three months immediately prior to the commencement of the action, and the most that can be said against it is, that it is uncertain; but whether this be so or not, the allegations of the second count are sufficient to support the judgment. Residence in the state and county for more than the requisite period is averred, and the allegation as to habitual intemperance is good in the absence of demurrer. It is not necessary to set out the particular acts of intemperance (Forney v. Forney , 80 Cal. 528); and the failure to allege that the defendant was disqualified, by the use of intoxicating drinks, a greater portion of the time "from properly attending to business," or that his conduct inflicted upon plaintiff "a course of great mental anguish" (Civ. Code, sec. 106), is not fatal. The objection now urged for the first time should have been taken by demurrer, on the ground of uncertainty.
The fact that the court amended the judgment after it was entered, by stating the fact that plaintiff was a resident of the county of Butte for more than five years prior to the commencement of the action, is not material. The court had already found that all allegations of the complaint were true; but even this was unnecessary as findings were not required, there being no answer.
The judgment is affirmed.