Van Horn v. Van Horn

KERRIGAN, J.

Appeal by defendant from a judgment, awarding plaintiff an interlocutory decree of divorce, and from an order denying defendant’s motion for a new trial.

The complaint alleges that the appellant committed adultery with one Adolph Knopf, and prays for a judgment of divorce, and that the whole of the community property and the custody of the two minor children be awarded to the respondent. During the pendency of the action one of the children reached majority. The action was tried, and an interlocutory decree was entered awarding respondent a divorce and the custody of the remaining minor child. Thq question of the property rights was reserved.

Among the assigned errors was the action of the trial court in refusing to permit appellant to introduce evidence of the good character of herself and the corespondent. The general rule is that in civil actions, evidence of character of neither party thereto is admissible. (5 Am. & Eng. Ency. of Law, pp. 861, 862; 1 Wigmore on Evidence, sec. 64.) There are exceptions to this rule. In actions for slander and libel, character is necessarily put in issue, as injury to character is the gist of such actions. (5 Am. & Eng. Ency. of

[721]

Law, p. 865.) There are a few other exceptions, and by some authorities different conclusions are reached as to whether the charge of adultery in an action for divorce is one of the exceptions. In this state, however, the question is controlled by section 2053, Code of Civil Procedure, which reads: “Evidence of the good character of a party is not admissible in a civil action, nor of a witness in any action, until the character of such party or witness has been impeached, or unless the issue involves his character.” By the allegation of adultery ^appellant’s character was not put in issue, and evidence concerning it, under this section, was properly excluded. The corespondent was not a party to the action, nor had he, as a witness, been impeached (Code Civ. Proc., sec. 2051), so evidence of the excellence of his character was properly rejected. (Code Civ. Proc., sec. 2053;

People

v.

Bush,

65 Cal. 134, [3 Pac. 590], concurring opinion.)