Rutledge v. Rutledge

PLUMMER, J.

Plaintiff had judgment in an action for divorce on the ground of desertion, and the defendant appeals.

It appears from the transcript that prior to the first day of September, 1923, the plaintiff had been occupying a certain residence constituting the community property - belonging to the plaintiff and the defendant; that the defendant for some period of time had been occupying a garage situate on the same lot as the residence occupied by the plaintiff. It also appears that up until said date some litigation had been pending between the plaintiff and -the defendant, and that the defendant had been enjoined from entering upon the residence occupied by the plaintiff. On the first day of September, 1923, the complaint alleges, the testimony in the transcript shows and the court found that the defendant went to the house occupied by the plaintiff, tore open the screen door, broke the fastening hook thereon, entered the building and room occupied by the plaintiff and removed from the front bedroom the furniture which the plaintiff was then and had theretofore been using in connection with her occupancy of the house referred

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to. That at the same time the defendant disconnected the gas range that plaintiff had used while occupying said residence, removed the same from the house, and left plaintiff no means for preparing her meals, heating water, etc. That the defendant, in entering said house, did so with the intention then and there to abandon the plaintiff and force her from his company, etc. The court further found that the defendant did not return to said residence on the first day of September, 1923, for the purpose or with the intention of peaceably and properly occupying said home as his natural and lawful right. The court further found the existence of the community property of the value of about five thousand dollars described in the complaint. The substance of the findings of the court is to the effect that the conduct of the defendant was such as to compel the plaintiff to leave the residence referred to, and that such conduct constituted desertion on the part of the defendant under the provisions of section 98 of the Civil Code.

The contention made upon this appeal is not so much that the evidence is insufficient to support the finding of the court that the defendant’s conduct was such as to justify the plaintiff in leaving the residence referred to, but that there is no corroborating testimony. In the first place, attention may be called to the testimony of the plaintiff on cross-examination partly set out in the appellant’s opening brief. After setting forth the acts of the defendant in relation to the defendant forcibly entering the house occupied by the plaintiff, and his acts and conduct toward her, the appellant’s brief sets forth the following: “When asked if she left her home after this, she testified as follows: ‘Possibly I might have stayed there after that, I guess, maybe 3 or 4 days. Nothing happened there all that time between Mr. Rutledge and me.’ ” Basing his argument upon this excerpt of the testimony, it is argued that the plaintiff shows thereby that she was not afraid of the defendant, and that nothing that he had done had put her in fear of any bodily injury or such as to induce in the mind of the plaintiff apprehension as to any‘future misconduct on the part of the defendant. This excerpt from the testimony, however, whether intentionally or otherwise, omits the vital and significant portion thereof. The testimony of the plaintiff from