Murray v. Murray

CONREY, P. J.

From the evidence in this case we infer that the action was commenced on November 21, 1911. An amended complaint based on a charge of adultery was filed on February 14, 1912. In that complaint no reference was made to property interests of the parties. On April 8, 1912,

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the cause came on for hearing upon default of the defendant. Thereafter, on October 4, 1912, an interlocutory judgment was signed by Hon. Charles Monroe, the judge of the superior court who had heard the evidence in April. This decree, entered on October 7, 1912, contained no reference to the property interests of the parties. On April 19, 1912, the plaintiff filed a supplemental complaint describing certain property acquired by the parties by their joint efforts since their marriage, and praying that such portion of the community property be allowed and set apart to plaintiff as her separate property for her support and for the support of the minor children, as should be found equitable and just. In answer to the supplemental complaint the defendant set up a certain contract in writing entered into between plaintiff and defendant on or about December 4, 1911, agreeing upon a division of said property and incidentally providing for the payment of certain sums of money, in the aggregate amounting to five thousand dollars, to be paid by plaintiff to defendant.

Thereafter, at some time prior to August 30, 1912, the case was brought to trial before Hon. E. N. Rector, judge presiding, upon the issues raised by the supplemental complaint and answer thereto. By judgment entered October 3, 1912, and pursuant to findings filed August 3, 1912, the said articles of agreement of date December 4, 1911, were declared to be void and a disposition of the property was made other and different from that provided for in said agreement.

At the trial before Judge Rector no evidence was received concerning plaintiff’s right to a divorce. The defendant moved for a new trial, which we will assume related to the case as heard by Judge Rector, although the bill of exceptions does not contain the motion for new trial or the notice of such motion. This motion was denied by Judge Rector on April 18, 1913. The defendant appeals from the judgment entered October 3, 1912, and from the order denying said motion for a new trial.