Rethers v. Rethers

NOURSE, P. J.

This is an appeal from an order granting a new trial. Plaintiff, husband, sued for divorce on the ground of cruelty alleging residence for the required period in the city and county of San Francisco. Defendant, wife, cross-complained on the grounds of wilful desertion and ex

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treme cruelty and also alleged residence for the required period in the city and county of San Francisco. No evidence was presented on the husband’s complaint. At the trial of the wife’s cross-complaint both she and a son of hers by a former marriage testified to her residence in San Francisco during more than the required period. An interlocutory decree in her favor was duly entered on the cross-complaint. The husband moved for a new trial on five of the statutory grounds, one of which was “insufficiency of the evidence to justify the judgment and that said judgment is against law.” The order granting the motion for a new trial, from which the wife appeals, does not contain any designation of the grounds on which it is based.

The husband urged three points in support of his motion in the trial court and he urges the same points on appeal in support of the order. Only with respect to the first one has appellant briefed her position.

1. The contention that the lack of legally corroborated evidence of the residence requirement of the husband justified the granting of the new trial is without merit. It is true that in that respect there was no other corroboration than the admission and testimony by the wife, and that, if the husband had been the plaintiff on whose complaint the judgment was granted, such would have vitiated the judgment as a matter of law.

(Eriksen

v.

Eriksen,

57 Cal.App.2d 532, 535-536 [134 P.2d 825].) However, the judgment was granted on the cross-complaint of the wife and her testimony as to her residence was duly corroborated. Except with respect to the requirement of one final judgment, an action on a cross-complaint is considered a separate action in which the original defendant is the plaintiff. ‘ ‘ These cross-actions . . . are . . . distinct and independent causes of action, so that when properly interposed and stated the defendant becomes in respect to the matters pleaded by him, an actor, and there are two simultaneous actions pending between the same parties wherein each is at the same time both a plaintiff and a defendant.”