Goetting v. Goetting

CASHIN, J.

An action by respondent, Frances L. Goetting, against her husband, Charles L. Goetting, for permanent support and maintenance. The action as to Daisy L. Ford, who was joined as a defendant, was dismissed. Judgment was entered for respondent, from which the husband appealed on the judgment-roll alone, urging as grounds for reversal the insufficiency of the complaint to support the judgment awarding portions of the community property to respondent, that the special demurrer thereto on the ground of uncertainty should have been sustained, and that the action is barred by the provisions of section 343 of the Code of Civil Procedure.

The complaint, which was filed on October 9, 1923, alleged that the parties, who had been married for nearly thirty years, separated on August 17, 1917; that on numerous occasions during their married life the exact dates of which respondent was unable to state, appellant without cause or provocation had cursed her, calling her vile and obscene names, and on numerous occasions had struck and knocked her down; further alleging that without respondent’s knowledge or consent he had on numerous occasions prior to the separation accompanied defendant Ford to various cafes and roadhouses, remaining away from his home during the night; that since the separation he had lived with the latter in an apartment house in San Francisco, and that his conduct had inflicted on respondent great bodily harm and grievous mental suffering. The allegations of cruelty were denied by appellant, who filed a cross-complaint for divorce on similar grounds, in which he prayed that the community property be awarded to him.

The averments of the complaint show that the acts of cruelty complained of were wrongfully inflicted, and were sufficient to state a cause of action for divorce. The uncertainties to which the special demurrer was directed related to the language applied to respondent and to the times and places of the commission of the acts alleged. While the

[367]

special demurrer of these allegations might properly have been sustained

(Johnson

v.

Johnson,

4 Cal. Unrep. 446 [35 Pac. 637]), as stated, the allegations were denied by answer and the case tried on the issues presented. When a case has been tried and a judgment rendered on the facts, in order to warrant a reversal for error in overruling a demurrer interposed on the ground of uncertainty, it must appear that some substantial right of the demurrant has been affected, some prejudicial error as distinguished from abstract error suffered by him, or he has no ground for complaint