Maduro v. Maduro

PETERS, P. J.

Plaintiff brought this action for the annulment of his marriage on the ground that at the time he

[778]

married the defendant she had another husband living from whom she had not been legally divorced. The defendant wife’s default was duly and properly entered. A hearing was then had. The trial court denied the annulment on the ground that plaintiff had not introduced sufficient evidence at the hearing to prove the allegations of his complaint. Plaintiff appeals, the main point urged being that upon default of his wife, the allegations of the complaint being sufficient, he was, as a matter of law, entitled to a decree that the marriage was null and void from the beginning without the production of any evidence at all.

Strangely enough, there appears to be no California case discussing the question as to whether, when a defendant defaults in an annulment proceeding (using the term “annulment” in its broadest sense), such party is entitled to a judgment without the production of evidence. So far as divorces are concerned, the matter is expressly covered by statute. Section 130 of the Civil Code provides that: “No divorce can be granted upon the default of the defendant, or upon the uncorroborated statement, admission, or testimony of the parties. ...” There is no comparable statute in reference to annulment. Plaintiff correctly contends that the word “divorce” in section 130,

supra,

does not include annulments. In

Millar

v.

Millar,

175 Cal. 797 [167 P. 394, Am.Cas. 1918E 184, L.R.A. 1918B 415], it was held that the word “divorce” appearing in section 128 of the Civil Code relating to the requisite residence of a plaintiff in a divorce proceeding, and the same term appearing in section 131 of the Civil Code requiring a decision to be filed in a divorce case, and the same term appearing in section 132 of that code providing for the entry of the final judgment in a divorce action after one year, has no application to annulment proceedings. For the reasons set forth in that opinion (see particularly 175 Cal. at pp. 806 to 809) we agree that section 130 has no application to annulment proceedings.