The Court.
Action for divorce upon the ground of extreme cruelty. Judgment was entered in favor of plain!iff, and the defendant appeals.
1. After the filing of the complaint in this action, and before any appearance on the part of defendant, the attorney for plaintiff filed with the clerk of the superior court a paper properly entitled in the cause, and stating, “ The above-entitled action is hereby dismissed,” but no judgment of dismissal was entered. It is claimed by appellant that upon the filing of this paper the court lost jurisdiction of the action, and that jurisdiction was not restored by the subsequent appearance and answer of defendant. This objection to the jurisdiction of the court was made in various forms in the court below, and overruled. The court did not err in its rulings upon this point. The filing of the paper referred to was in effect an order for a dismissal of the action, and would have been sufficient authority for the clerk to h&ve entered a judgment of dismissal, but until the entry of such judgment the court retained jurisdiction of the case. (Page v. Superior Court, 76 Cal. 372; Acock v. Halsey, 90 Cal. 215; Rochat v. Gee, 91 Cal. 355.)
2. It is urged by appellant that the facts alleged in the complaint and found by the court do not entitle plaintiff to the decree, which he obtained, dissolving the marriage which existed between him and appellant. The cruelty alleged and found is, that appellant inflicted grievous mental suffering upon plaintiff, by imputing to [175]*175him, in the presence of others, the grossest immorality and personal impurity. It is not necessary to state here, with any particularity, the language by which these charges were made. It is sufficient to say that such charges, if false, were well calculated to bring upon a person of ordinary sensibility grievous mental suffering. But it is not alleged in the complaint, nor is it found by the court, that the charges of which plaintiff complains had any injurious effect upon his health, and for this reason it is claimed that the complaint and findings do not support the judgment, under the law as declared by this court in Waldron v. Waldron, 85 Cal. 251. It was held in that case that a finding to the effect that the defendant had inflicted upon the plaintiff therein grievous mental suffering, but without injury to her health, was not equivalent to a finding of extreme cruelty upon the part of the defendant, and would not sustain a judgment for divorce upon that ground; and in discussing the question as to what constitutes such extreme cruelty as will justify a divorce, the court said: “ Although the character of the ill treatment, whether it operates directly upon the body, or primarily upon the mind alone, and all the attending circumstances, are to be considered for the purpose of estimating the degree of the cruelty, yet the final test of the sufficiency, as a cause of divorce, must be its actual or reasonably apprehended injurious effect upon the body or health of the complaining party.” And it was further said in that case, “ that the practical view of the law is, that a degree of cruelty which cannot be perceived to injure the body y^ihe health of the body * can be practically endured/ ^Jproiísí be endured if there is no other remedy than by divorce; because no scale ’ by which to gauge the purely mental susceptibilities and sufferings has yet been invented or discovered, except such as indicate the degrees thereof by their perceptible effects upon the physical organization of the body.”
Tested by this rule, it must be conceded that the findings here are insufficient to sustain the judgment. But [176]*176the case from which we have just quoted, was decided by a bare majority of the court as it was then constituted, and while the conclusion there reached finds support in many earlier cases cited in the opinion, we do not think it can be sustained without a wide departure from the letter and spirit of section 94 of the Civil Code of this state, which declares: “ Extreme cruelty is the infliction ' of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage.” The language of this section is plain, and cannot be properly construed as declaring that only grievous bodily injury shall constitute extreme cruelty, and that extreme mental suffering which is not shown to have injuriously affected the body or health of the complaining party is not sufficient. The tendency of modern decisions, reflecting the advanced civilization of the present age, is to view marriage from a different standpoint than as a mere physical relation. It is now more wisely regarded as a union affecting the mental and spiritual life of the parties to it, — a relation designed to bring to them the comfort and felicities of home life, and between whom, in order to fulfill such design, there should exist mutual sentiments of love and respect. “ It was formerly thought that to constitute extreme cruelty, such as would authorize .the granting of a divorce, physical violence is necessary; but the modern and better considered cases have repudiated this doctrine as taking too low and sensual a view of the marriage relation, and it is now very generally held that *i any unjustifiable conduct on the part of either the husi band or wife, which s^yfievously wounds the.feelings of the other, or so utterpJPstroys the peace of mind of the ' other, as to seriouslyflmpair the health, .... or such as ' utterly destroys the legitimate ends and objects of matrimony, _constitutes extreme cruelty under the statutes.” (Carpenter v. Carpenter, 30 Kan. 744; 46 Am. Rep. 108.) Section 94 of the Civil Code is in harmony with the law as thus stated, and under ifc the infliction of grievous mental suffering is extreme cruelty. It may be true that there is “ no scale by which to gauge the purely mental sus[177]*177ceptibilities and sufferings ” of another, nor is it necessary that there should be any such exact measure. The common judgment of mankind recognizes the fact that there may be unfounded charges and cruel imputations which are not more easily borne than physical bruises, and the necessary effect of which is to cause great mental distress to the person against whom they are made. Whether in any given case there has been inflicted this “ grievous mental suffering ” is a pure question of fact, to be deduced from all the circumstances of each particular case, keeping always in view the intelligence, apparent refinement, and delicacy of sentiment of the complaining party; and no arbitrary rule of law as to what particular probative facts shall exist in order to justify a finding of the ultimate facts of its existence can be given. As said by Mr. Justice McFarland, in his dissenting opinion in Waldron v. Waldron, 85 Cal. 251: “ Every case where a divorce is sought on this ground must depend upon its own particular facts; and a correct decision must depend—as most cases depend—upon the sound sense and judgment of juries and courts.”
We cannot say in this case that the court was not fully justified in finding that the conduct of the defendant inflicted upon plaintiff grievous mental suffering, as alleged in the complaint.
The evidence was sufficient to sustain the finding of the court that plaintiff had been a resident of the state for more than six months prior to the commencement of the action.
The refusal of the court to grant a continuance cannot be held to be an abuse of discretion. In Kneebone v. Kneebone,
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The Court.
Action for divorce upon the ground of extreme cruelty. Judgment was entered in favor of plain!iff, and the defendant appeals.
1. After the filing of the complaint in this action, and before any appearance on the part of defendant, the attorney for plaintiff filed with the clerk of the superior court a paper properly entitled in the cause, and stating, “ The above-entitled action is hereby dismissed,” but no judgment of dismissal was entered. It is claimed by appellant that upon the filing of this paper the court lost jurisdiction of the action, and that jurisdiction was not restored by the subsequent appearance and answer of defendant. This objection to the jurisdiction of the court was made in various forms in the court below, and overruled. The court did not err in its rulings upon this point. The filing of the paper referred to was in effect an order for a dismissal of the action, and would have been sufficient authority for the clerk to h&ve entered a judgment of dismissal, but until the entry of such judgment the court retained jurisdiction of the case. (Page v. Superior Court, 76 Cal. 372; Acock v. Halsey, 90 Cal. 215; Rochat v. Gee, 91 Cal. 355.)
2. It is urged by appellant that the facts alleged in the complaint and found by the court do not entitle plaintiff to the decree, which he obtained, dissolving the marriage which existed between him and appellant. The cruelty alleged and found is, that appellant inflicted grievous mental suffering upon plaintiff, by imputing to [175]*175him, in the presence of others, the grossest immorality and personal impurity. It is not necessary to state here, with any particularity, the language by which these charges were made. It is sufficient to say that such charges, if false, were well calculated to bring upon a person of ordinary sensibility grievous mental suffering. But it is not alleged in the complaint, nor is it found by the court, that the charges of which plaintiff complains had any injurious effect upon his health, and for this reason it is claimed that the complaint and findings do not support the judgment, under the law as declared by this court in Waldron v. Waldron, 85 Cal. 251. It was held in that case that a finding to the effect that the defendant had inflicted upon the plaintiff therein grievous mental suffering, but without injury to her health, was not equivalent to a finding of extreme cruelty upon the part of the defendant, and would not sustain a judgment for divorce upon that ground; and in discussing the question as to what constitutes such extreme cruelty as will justify a divorce, the court said: “ Although the character of the ill treatment, whether it operates directly upon the body, or primarily upon the mind alone, and all the attending circumstances, are to be considered for the purpose of estimating the degree of the cruelty, yet the final test of the sufficiency, as a cause of divorce, must be its actual or reasonably apprehended injurious effect upon the body or health of the complaining party.” And it was further said in that case, “ that the practical view of the law is, that a degree of cruelty which cannot be perceived to injure the body y^ihe health of the body * can be practically endured/ ^Jproiísí be endured if there is no other remedy than by divorce; because no scale ’ by which to gauge the purely mental susceptibilities and sufferings has yet been invented or discovered, except such as indicate the degrees thereof by their perceptible effects upon the physical organization of the body.”
Tested by this rule, it must be conceded that the findings here are insufficient to sustain the judgment. But [176]*176the case from which we have just quoted, was decided by a bare majority of the court as it was then constituted, and while the conclusion there reached finds support in many earlier cases cited in the opinion, we do not think it can be sustained without a wide departure from the letter and spirit of section 94 of the Civil Code of this state, which declares: “ Extreme cruelty is the infliction ' of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage.” The language of this section is plain, and cannot be properly construed as declaring that only grievous bodily injury shall constitute extreme cruelty, and that extreme mental suffering which is not shown to have injuriously affected the body or health of the complaining party is not sufficient. The tendency of modern decisions, reflecting the advanced civilization of the present age, is to view marriage from a different standpoint than as a mere physical relation. It is now more wisely regarded as a union affecting the mental and spiritual life of the parties to it, — a relation designed to bring to them the comfort and felicities of home life, and between whom, in order to fulfill such design, there should exist mutual sentiments of love and respect. “ It was formerly thought that to constitute extreme cruelty, such as would authorize .the granting of a divorce, physical violence is necessary; but the modern and better considered cases have repudiated this doctrine as taking too low and sensual a view of the marriage relation, and it is now very generally held that *i any unjustifiable conduct on the part of either the husi band or wife, which s^yfievously wounds the.feelings of the other, or so utterpJPstroys the peace of mind of the ' other, as to seriouslyflmpair the health, .... or such as ' utterly destroys the legitimate ends and objects of matrimony, _constitutes extreme cruelty under the statutes.” (Carpenter v. Carpenter, 30 Kan. 744; 46 Am. Rep. 108.) Section 94 of the Civil Code is in harmony with the law as thus stated, and under ifc the infliction of grievous mental suffering is extreme cruelty. It may be true that there is “ no scale by which to gauge the purely mental sus[177]*177ceptibilities and sufferings ” of another, nor is it necessary that there should be any such exact measure. The common judgment of mankind recognizes the fact that there may be unfounded charges and cruel imputations which are not more easily borne than physical bruises, and the necessary effect of which is to cause great mental distress to the person against whom they are made. Whether in any given case there has been inflicted this “ grievous mental suffering ” is a pure question of fact, to be deduced from all the circumstances of each particular case, keeping always in view the intelligence, apparent refinement, and delicacy of sentiment of the complaining party; and no arbitrary rule of law as to what particular probative facts shall exist in order to justify a finding of the ultimate facts of its existence can be given. As said by Mr. Justice McFarland, in his dissenting opinion in Waldron v. Waldron, 85 Cal. 251: “ Every case where a divorce is sought on this ground must depend upon its own particular facts; and a correct decision must depend—as most cases depend—upon the sound sense and judgment of juries and courts.”
We cannot say in this case that the court was not fully justified in finding that the conduct of the defendant inflicted upon plaintiff grievous mental suffering, as alleged in the complaint.
The evidence was sufficient to sustain the finding of the court that plaintiff had been a resident of the state for more than six months prior to the commencement of the action.
The refusal of the court to grant a continuance cannot be held to be an abuse of discretion. In Kneebone v. Kneebone, 83 Gal. 647, the court said: “It is settled law in this state that applications for continuance are addressed to the sound discretion of the trial court, and its action will not be disturbed on appeal, unless the record affirmatively shows that it abused its discretion. In Musgrove v, Perkins, 9 Gal. 212, the court, per Field, J., said: The granting or refusing a continuance rests in the sound discretion of the court below, and its ruling [178]*178will not be revised, except for the most cogent reasons. The court below is apprised of all the circumstances of the case, and the previous proceedings, and is therefore better able to decide upon the propriety of granting the application than the appellate court, and when it exercises a reasonable and not an arbitrary discretion, its action will not be disturbed.’ And similar language has been used in many .subsequent decisions.” This action was commenced on May 14, 1889. The defendant was personally served with summons nine days later, and on June 21st she appeared and demurred to the complaint. On July 28th the demurrer was withdrawn, and the defendant was allowed thirty days in which to answer the complaint. She procured further extensions of time, and filed an answer and cross-complaint on October 15,1889. An application was made on the "16th of October to have the cause set for trial, but by reason of the illness of the presiding judge, the hearing of the motion was postponed until the 25th, when the cause was set for trial on December 2d following. Counsel for defendant objected to the order of the court setting the case for trial on December 2d, on the ground that it would be necessary to take the depositions of witnesses residing in New York; that defendant was an actress by profession, and dependent upon herself for a living, and that her senior counsel would be necessarily absent from the state for about a month. Counsel for plaintiff stated that he would waive service of notice for the issuance of the commission to take depositions, and thereupon the order was made as stated. An application was made on December 2d for a continuance until the fifteenth day of January, 1890, and the cause was continued until the sixth day of December, 1889, at which time the motion for a continuance to January 15th was made and denied. The commission to take depositions was not issued until the eighteenth day of November, 1889. When the cause came on for trial, December 6, 1889, counsel for defendant filed an affidavit, and in connection therewith sev-' eral letters and telegrams received from the defendant, [179]*179as a basis for his motion for a further continuance until January 15th. It is apparent from the language of the court in denying this last motion that it believed the defendant was not acting in good faith, but was endeavoring to postpone the action of the court until her business engagements would bring her to San Francisco, and we cannot say that such conclusion may not have been fairly drawn from all the circumstances of the case. Defendant had actual notice more than six months prior to the day of the trial of the charge which plaintiff made against her, and the cause was at issue nearly two months before the trial occurred. It appears from the letters and telegrams that the defendant was at Minneapolis, Minnesota, November 15th; Milwaukee, Wisconsin, November 19th; Marshalltown, Iowa, November 22d; Des Moines, Iowa, November 23d; Kansas City, November 26th and 27th; St. Louis, December 2d, 4th, and 6th; and was informed at these times of all that had occurred. The court doubtless concluded that if the defendant could thus travel about in the East she, was able to make the trip to San Francisco in time to be present at the trial; and as stated before, we cannot say that its order was an abuse of discretion. It has been held here that there is no abuse of discretion in refusing a motion for a continuance if the circumstances cast suspicion on the good faith of the application, and induce the belief that it was intended only for delay. (People v. Mortimer, 46 Cal. 120.)
While the trial court should be most liberal in granting continuances in divorce cases, because the public as well as the parties to the action are interested in the result of the suit, a defendant must be held to the exercise of good faith and diligence, and cannot be heard to complain if the failure to present his defense results from an attempt to subordinate the business of the court to his own business engagements and convenience.
The judgment and order are affirmed,