Moran v. District Court of Appeal

SHENK, J.

This is a proceeding in

certiorari

to annul an order of the District Court of Appeal, Third Appellate District.

In an action pending in the Superior Court in and for the County of Sacramento, entitled

Irene E. Moran,

Plaintiff, v.

Arthur R. Moran,

Defendant, the plaintiff sought a divorce on the ground of extreme cruelty. The defendant husband answered and filed a cross-complaint, in which he alleged that the purported marriage between himself and the plaintiff was void for the reason that the plaintiff was formerly married to Paul R. Hendricks, who is still alive, and from whom she had not been divorced. The defendant prayed that the plaintiff be denied a divorce and that he be granted a decree of annulment.

At the time of the trial of the action, the defendant was unable to locate Hendricks, without whose testimony he was unable to prove the alleged prior and undissolved marriage relationship. An interlocutory decree of divorce was entered in favor of the plaintiff on March 1, 1940, and it was further determined that the defendant take nothing by his cross-complaint. On March 4th the defendant served a notice of motion for a new trial upon several grounds, including newly discovered evidence. In support of the motion an affidavit

[529]

was filed in which it was averred that since the divorce case had been determined the defendant had discovered that Paul R Hendricks resides at Waukegan, Illinois, and that he had refused to make an affidavit concerning his marital status with the plaintiff. On March 11th the defendant applied to the superior court for an order to take the deposition of Hendricks to establish the newly discovered evidence on the motion for a new trial. The application was denied.

On March 15th the defendant served and filed in the respondent District Court of Appeal a notice of motion for a peremptory writ of

mandamus