Price v. Price

WHITE, P. J.

This is an appeal by the defendant wife from an interlocutory judgment of divorce granted upon the grounds of desertion and extreme cruelty. It is contended that plaintiff’s testimony is not corroborated as required by section 130 of the Civil Code; that the trial court erred

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in excluding from evidence the record of a previous divorce action which had been brought by the plaintiff and dismissed, and which was offered for the purpose of impeachment; and that the plaintiff failed to overcome the presumption arising under the provisions of section 125 of the Civil Code when there has been unreasonable delay in commencing an action for divorce.

With respect to the asserted lack of corroboration, appellant submits that plaintiff’s testimony that the parties separated in 1923 was not corroborated, in that the testimony of the corroborating witness supports the contention of defendant that the separation did not take place until June, 1925. Further, it is pointed out that a defense witness testified that the parties lived in an apartment over the garage belonging to the witness until June, 1925.

In substance, plaintiff testified that defendant unjustly accused him of consorting with other women, threw water in his face instead of assisting him when on occasions a World War I lung injury caused him to gasp for breath, had him ousted from the home of the parties, and threatened to use force should he attempt to return. That when he attempted to return at a later date he was prevented from entering the premises by the police, who informed him they had been ordered to keep him away. That the defendant refused ever to live with him again; that they separated about April 1, 1923, and since that time defendant had wilfully refused to live with him.

Bertha Schmidt testified by deposition that she had observed defendant’s attitude toward plaintiff, which attitude was not one of affection or love, but instead defendant quarreled with plaintiff without provocation; that the witness was present on or about April 1, 1923, when plaintiff attempted a reconciliation and defendant refused to live with plaintiff, threatening force if plaintiff did not leave the premises; that to the witness’ knowledge plaintiff and defendant did not reside together after that time.