Ward v. Goetz

WORKS, J.,

pro

tem.

This is an appeal from the judgment. The appellant Goetz and the respondent were formerly husband and wife. Some time prior to February 16, 1911, the respondent commenced an action for separate maintenance against her husband. On the date mentioned the two entered

[596]

into an agreement to live apart, the instrument also providing for a dismissal of the maintenance suit, and for the payment by the husband to the wife of the sum of fifty dollars each month, so long as they should remain married. As a part of the same transaction the appellant Goetz, as principal, and the appellant Nebeker, as surety, executed to respondent a bond in the sum of one thousand dollars, securing the payment of the monthly installments. In December, 1913, respondent obtained a divorce by decree of a Nevada court and her maiden name of Ward was restored to her. With the payment of January, 1913, Goetz ceased meeting the installments agreed by him to be paid to his wife, and this action was commenced to recover on the bond for the payments due from that time forward. The plaintiff had judgment.

The first contention made by the appellant is that Miss Ward has waived her right to collect the installments and that she is estopped to claim them. It appears that there was pending in California a suit for divorce brought by the husband at the same time that the Nevada action was in the courts of that state. One C. N. Gary, a Nevada lawyer, was counsel for the wife in the action in that jurisdiction. At a certain stage of the Nevada litigation Gary became fearful that the California ease might first reach a conclusion and wrote Ben S. Hunter, Goetz’s California lawyer, as follows:

“I

will procure from Marguerite W. Goetz and deliver in escrow an agreement that in the event that a continuance for 2 days be stipulated in the action of

Goetz

v.

Goetz

pending in the Sup. Ct. of L. A. County, California, she will release Harry X. Goetz from all liability for back payments or alimony under the property settlement made at the close of the former litigation.”