Mini v. Mini

California Supreme Court

Mini v. Mini

45 P. 1044, 5 Cal. Unrep. 432, 1896 Cal. LEXIS 1063

CourtCalifornia Supreme Court

DecidedSeptember 3, 1896

DocketSac. No. 53

StatusPublished

This text of 45 P. 1044 (Mini v. Mini) 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

Mini v. Mini, 45 P. 1044, 5 Cal. Unrep. 432, 1896 Cal. LEXIS 1063 (Cal. 1896).

Pincite

Opinion

VANCLIEF, C.

Action for divorce on the ground of adultery. After the statement of a complete cause of action for a divorce on the ground of adultery the complaint contains the following: “That the plaintiff is possessed of considerable property, both real and personal, situate and being in the said state of California, all of which is the separate property of the plaintiff, having been acquired by him before his said marriage, or acquired by him subsequent thereto, from the rents, issues, and profits thereof.” The prayer of the complaint is for a divorce, ‘ ‘ and that it be adjudged and decreed therein that the said defendant has no right, title, claim or interest in or to said property owned and possessed by plaintiff, or any part thereof.” Summons having been regularly served on the defendant in the county of Solano, in which the action was brought, she failed to appear by demurrer or otherwise, and judgment for the relief prayed for was rendered against her by default. The judgment describes the separate property of the plaintiff, in which it was adjudged that the defendant had no title nor interest, with great particularity and certainty. The defendant brings this appeal from the judgment, and the only ground upon which a reversal is asked is that the complaint does not describe [433]*433the separate property of the plaintiff with sufficient certainty. Conceding that, in respect to the alleged separate property, the description thereof was not sufficiently definite or certain, the defect was waived by defendant’s default and failure •to demur: Code Civ. Proc., sec. 434; Gimmy v. Gimmy, 22 Cal. 633; Kelly v. Murphy, 70 Cal. 560, 12 Pac. 467. In the absence of a special demurrer, the allegation was a sufficient foundation for evidence of a definite description of the property: Bates v. Babcock, 95 Cal. 484, 29 Am. St. Rep. 133, 16 L. R. A. 745, 30 Pac. 605; San Francisco v. Pennie, 93 Cal. 468, 29 Pac. 66; Schluter v. Harvey, 65 Cal. 158, 3 Pac. 659; Garner v. Marshall, 9 Cal. 269. I think the judgment should be affirmed.

We concur: Haynes, C.; Belcher, C.

PER CURIAM.

For the reasons given in the foregoing opinion the judgment is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

VANCLIEF, C.

Action for divorce on the ground of adultery. After the statement of a complete cause of action for a divorce on the ground of adultery the complaint contains the following: “That the plaintiff is possessed of considerable property, both real and personal, situate and being in the said state of California, all of which is the separate property of the plaintiff, having been acquired by him before his said marriage, or acquired by him subsequent thereto, from the rents, issues, and profits thereof.” The prayer of the complaint is for a divorce, ‘ ‘ and that it be adjudged and decreed therein that the said defendant has no right, title, claim or interest in or to said property owned and possessed by plaintiff, or any part thereof.” Summons having been regularly served on the defendant in the county of Solano, in which the action was brought, she failed to appear by demurrer or otherwise, and judgment for the relief prayed for was rendered against her by default. The judgment describes the separate property of the plaintiff, in which it was adjudged that the defendant had no title nor interest, with great particularity and certainty. The defendant brings this appeal from the judgment, and the only ground upon which a reversal is asked is that the complaint does not describe [433]*433the separate property of the plaintiff with sufficient certainty. Conceding that, in respect to the alleged separate property, the description thereof was not sufficiently definite or certain, the defect was waived by defendant’s default and failure •to demur: Code Civ. Proc., sec. 434; Gimmy v. Gimmy, 22 Cal. 633; Kelly v. Murphy, 70 Cal. 560, 12 Pac. 467. In the absence of a special demurrer, the allegation was a sufficient foundation for evidence of a definite description of the property: Bates v. Babcock, 95 Cal. 484, 29 Am. St. Rep. 133, 16 L. R. A. 745, 30 Pac. 605; San Francisco v. Pennie, 93 Cal. 468, 29 Pac. 66; Schluter v. Harvey, 65 Cal. 158, 3 Pac. 659; Garner v. Marshall, 9 Cal. 269. I think the judgment should be affirmed.

We concur: Haynes, C.; Belcher, C.

PER CURIAM.

For the reasons given in the foregoing opinion the judgment is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

45 P. 1044, 5 Cal. Unrep. 432, 1896 Cal. LEXIS 1063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mini-v-mini-cal-1896.

Opinion

Related

Cite This Page — Counsel Stack