Cunha v. Cunha

STURTEVANT, J.

From an interlocutory decree in a divorce proceeding both parties have appealed. The action was commenced by the wife. She filed a complaint alleging extreme cruelty. The husband answered and denied many of the allegations contained in the complaint and at the same time filed a cross-complaint. The plaintiff filed an answer to the cross-complaint and on the issues so made the action went to trial. In the pleadings of both parties the property rights were put in issue.

In ascertaining the property rights it transpired that the mother of the defendant claimed that the parties were

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indebted to her for $1500 loaned to them. The defendant admitted that he had received the loan and he introduced in evidence a promissory note as evidence thereof. It was the theory of the defendant that the loan was made in 1924. He claimed that thereafter on September 1, 1927, a note was executed by him evidencing the loan. Further, he claimed that such note was renewed by another note dated January 2, 1932, and over the objection and exception of the plaintiff both notes were received in evidence showing the history of the transaction. The plaintiff makes two separate and different attacks. She claims that both notes were written on the same typewriter at one and the same time- and that the evidence was simulated. That objection was addressed to the trial court, but from the findings as made by the court we must assume it found the documents to be genuine and what they purported to be. The defendant and his mother both testified to the fact that the loan was made and that it had not been repaid. The most that can be said in behalf of the plaintiff’s contention is that there was some conflict in the evidence, but of course that conflict was for the trier of the facts to determine. Again, it is asserted by the plaintiff that the loan, if made, had become barred by the statute of limitations. Conceding that the loan was barred by the statute of limitations when the last note was made, that fact did not operate to pay the debt. It rested with the husband to assert the defense against his mother or to waive the defense. The plaintiff cites us to no authority and we know of none which would authorize her to force her husband to take refuge behind a plea of the statute of limitations.

It is next contended that the trial court did not make a division of the community property in accordance with the provisions of sections 146-148 of the Civil Code. In support of that contention the plaintiff claims she should have received more than one-half. As to what the division should have been rested with the trial court and there is certainly nothing in the record showing that the trial court abused its discretion. In this same connection the plaintiff complains because the trial court did not make a provision allowing her maintenance in addition to awarding her one-half of the community property. However, she cites us to no part of the record that would show the trial court erred in not doing so.