Cassidy v. Cassidy

California Supreme Court

Cassidy v. Cassidy

63 Cal. 352, 1883 Cal. LEXIS 455

CourtCalifornia Supreme Court

DecidedMay 8, 1883

StatusPublished

Cited by7 cases

This text of 63 Cal. 352 (Cassidy v. Cassidy) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cassidy v. Cassidy, 63 Cal. 352, 1883 Cal. LEXIS 455 (Cal. 1883).

Pincite

Opinion

McKinstry, J.

The defendant (appellant) demurred generally to the whole complaint. Appellant now claims there are two counts in the complaint, and that one is insufficient. There is but one count; but if there had been two, one being good, the general demurrer'would have been properly overruled.

One of the findings of the court below was “ all the material allegations of facts set forth in plaintiff’s complaint are sustained and proven by the evidence.” Such a finding does not uphold a judgment. We have no means of determining what the court below may deem “material” facts or averments. (Ladd v. Tully, 51 Cal. 277.) The finding with respect to “ extreme cruelty ” on the part of defendant is somewhat uncer[353]*353tain. If it be admitted, however, that such finding is sufficient, the record contains no pretense of a finding with reference to the counter-charges of the answer. It is well settled in this State that the findings must respond to all the material issues made by the pleadings. (Swift v. Canavan, 52 Cal. 417; Billings v. Everett, 52 Cal. 661; Phipps v. Harlan, 53 Cal. 87.) Defendant in an action for divorce may allege and prove facts constituting a cause of divorce against the plaintiff in bar of the plaintiff’s cause of divorce. (Civil Code, § 122.) The averment of the facts constituting such recriminatory defense, and the denial thereof by plaintiff (which the law implies), creates a material issue, upon which the court should find.

Judgment and order reversed and cause remanded for a new trial.

McKee, J., and Sharpstein, J., concurred.

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McKinstry, J.

The defendant (appellant) demurred generally to the whole complaint. Appellant now claims there are two counts in the complaint, and that one is insufficient. There is but one count; but if there had been two, one being good, the general demurrer'would have been properly overruled.

One of the findings of the court below was “ all the material allegations of facts set forth in plaintiff’s complaint are sustained and proven by the evidence.” Such a finding does not uphold a judgment. We have no means of determining what the court below may deem “material” facts or averments. (Ladd v. Tully, 51 Cal. 277.) The finding with respect to “ extreme cruelty ” on the part of defendant is somewhat uncer[353]*353tain. If it be admitted, however, that such finding is sufficient, the record contains no pretense of a finding with reference to the counter-charges of the answer. It is well settled in this State that the findings must respond to all the material issues made by the pleadings. (Swift v. Canavan, 52 Cal. 417; Billings v. Everett, 52 Cal. 661; Phipps v. Harlan, 53 Cal. 87.) Defendant in an action for divorce may allege and prove facts constituting a cause of divorce against the plaintiff in bar of the plaintiff’s cause of divorce. (Civil Code, § 122.) The averment of the facts constituting such recriminatory defense, and the denial thereof by plaintiff (which the law implies), creates a material issue, upon which the court should find.

Judgment and order reversed and cause remanded for a new trial.

McKee, J., and Sharpstein, J., concurred.

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Bluebook (online)

63 Cal. 352, 1883 Cal. LEXIS 455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cassidy-v-cassidy-cal-1883.

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