Traub v. Edwards

SPENCE, J.

Defendant appeals from a judgment entered in favor of plaintiff in this action for damages for the alleged alienation of the affections of plaintiff’s husband.

Said action was filed in 1938 and the judgment was entered in 1939. The notice of appeal was filed on September 15, 1939, and certain code amendments thereafter took effect on September 19, 1939. This appeal is presented on the judgment roll alone and no question is discussed in the briefs other than that of the effect of said code amendments upon actions for alienation of affections pending on September 19, 1939.

Defendant contends that “plaintiff’s cause of action was destroyed by the repeal of the statute on which her cause of action depended”. Defendant quotes the language found in

Krause

v.

Rarity,

210 Cal. 644 at page 652 as follows [293 Pac. 62, 77 A. L. R. 1327] : “By those cases the rule obtaining elsewhere has become thoroughly established in the law

[721]

of this state that when a right of action does not exist at common law, but depends solely upon a statute, the repeal of the statute destroys the right unless the right has been reduced to final judgment or unless the repealing statute contains a saving clause protecting the right in a pending litigation. ’ ’

Defendant then argues: First, that the right of action for the alienation of the affections of a husband did not exist at common law but was created by subdivision 1 of section 49 of the Civil Code as it existed prior to September 19, 1939

(Humphrey

v.

Pope,

122 Cal. 253 [54 Pac. 847]; 13 Cal. Jur. 901) ; second, that plaintiff’s right of action had not been reduced to final judgment and her action was still pending when the previously existing provisions of subdivision 1 of said section 49 relating to alienation of affections were repealed on September 19, 1939; and third, that there was no “saving clause in the repealing statute protecting plaintiff’s right”. It is upon these three points that defendant bases her contention that plaintiff's cause of action “was destroyed by the repeal of the statute” and that the judgment should therefore be reversed. Plaintiff apparently concedes the soundness of the first two points but contends that there was a saving clause and that there is therefore no foundation for defendant’s contention. Before considering the code amendments which went into effect in 1939, we deem it appropriate to set forth certain general principles which we believe are applicable here.