Curtis v. Curtis

FINLEY, J. pro tem.

Defendant appeals from a default judgment in favor of her husband granting him an annulment of the marriage. Two notices concerning appeal were given. The first was filed May 28, 1946, and recites that defendant “desires and intends to present her appeal from the order . . . denying her motion to vacate and set aside the judgment of annulment of marriage . . . wholly on a settled statement.” The second notice filed May 31, 1946, recites that ‘ ‘defendant . . . hereby appeals . . . from the judgment . . . entered . . . and from the whole thereof.” A subsequent notice, filed June 8, 1946, gives notice of defendant’s election “to set forth the oral proceedings had in the above entitled court and cause by a settled statement, on her appeal from the judgment rendered and entered therein, in lieu of a reporter’s transcript. ’ ’

Plaintiff’s complaint is in two counts. The first count is directed toward a judgment of annulment and reads as fol

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lows: ‘ ‘ That plaintiff and defendant were -purportedly married in the City of San Rafael, County of Marin, State of California, on or about the 22nd day of March, 1945; that there were no children nor was there any child born the issue of said purported marriage; that there is no community property of the parties hereto; that plaintiff and defendant separated on or about November 15, 1945, at which time plaintiff had fully ascertained the true facts as hereinafter set forth.

“That at the time of said purported marriage and when plaintiff’s consent thereto was given, defendant represented to plaintiff, directly and by implication, that defendant was a normal woman in all respects as generally understood between normal persons; that at said time, defendant well knew that defendant was not normal person mentally; that said defendant was, further, at one time confined to a mental institution; that defendant was not generally sound mentally or physically; that said condition of defendant was unknown to plaintiff at the time of said purported marriage; that plaintiff relied on said direct and implied representations of defendant and entered into said purported marriage upon said implied and direct representations of defendant as aforesaid; that shortly after said purported marriage, defendant indicated to plaintiff by conduct the said unsound condition of defendant; that plaintiff, upon investigation, found the true situation as to defendant’s present and past mental condition; had plaintiff known the facts as hereinbefore stated, that plaintiff would not have entered into said purported marriage, and that upon learning said true facts, plaintiff separated from defendant, and brought this action. ’ ’