Spilatro v. Ostendorf

California Court of Appeal

Spilatro v. Ostendorf

296 P. 90, 111 Cal. App. 740, 1931 Cal. App. LEXIS 1267

CourtCalifornia Court of Appeal

DecidedFebruary 14, 1931

DocketDocket No. 6423.

StatusPublished

This text of 296 P. 90 (Spilatro v. Ostendorf) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Spilatro v. Ostendorf, 296 P. 90, 111 Cal. App. 740, 1931 Cal. App. LEXIS 1267 (Cal. Ct. App. 1931).

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Opinion

*741 CONREY, P. J.

This is an appeal on the judgment-roll from a default judgment.

In the complaint it is alleged that the seventh day of January, 1927, is the date of the marriage of the plaintiff and his wife. The complaint then' proceeded to allege certain facts constituting enticement or alienation of affection of the plaintiff’s wife, all of which facts occurred prior to January 7, 1927, to wit: in November, 1925.

The sole ground of appeal is that on the face of the complaint it appears that at the time when the alleged wrongful acts were committed, the plaintiff and Laura Spilatro were not husband and wife. But the complaint further alleged that “the issue of said marriage” consisted of three children, of the respective ages of eight, six and five years at the time of the commencement of the action in March, 1927, and that the alleged wrongful acts of defendant occurred “while the plaintiff was living and cohabiting with, and supporting, his wife and children”. It thus appears that the stated date of the marriage was a clerical error. It might well be considered as a self-correcting clerical error, not, indeed, that it supplied the true' date, but to the extent that it was made to appear that the date of the marriage must have been and was prior to the date when the wife was enticed away from her husband.

The judgment is affirmed.

Houser, J., concurred.

York, J., dissented.

A petition for a rehearing of this cause was denied by the District Court of Appeal on March 3, 1931.

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*741 CONREY, P. J.

This is an appeal on the judgment-roll from a default judgment.

In the complaint it is alleged that the seventh day of January, 1927, is the date of the marriage of the plaintiff and his wife. The complaint then' proceeded to allege certain facts constituting enticement or alienation of affection of the plaintiff’s wife, all of which facts occurred prior to January 7, 1927, to wit: in November, 1925.

The sole ground of appeal is that on the face of the complaint it appears that at the time when the alleged wrongful acts were committed, the plaintiff and Laura Spilatro were not husband and wife. But the complaint further alleged that “the issue of said marriage” consisted of three children, of the respective ages of eight, six and five years at the time of the commencement of the action in March, 1927, and that the alleged wrongful acts of defendant occurred “while the plaintiff was living and cohabiting with, and supporting, his wife and children”. It thus appears that the stated date of the marriage was a clerical error. It might well be considered as a self-correcting clerical error, not, indeed, that it supplied the true' date, but to the extent that it was made to appear that the date of the marriage must have been and was prior to the date when the wife was enticed away from her husband.

The judgment is affirmed.

Houser, J., concurred.

York, J., dissented.

A petition for a rehearing of this cause was denied by the District Court of Appeal on March 3, 1931.

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Bluebook (online)

296 P. 90, 111 Cal. App. 740, 1931 Cal. App. LEXIS 1267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spilatro-v-ostendorf-calctapp-1931.