Hockerston v. Hockerston

California Court of Appeal May 13, 1919 No. Civ. No. 2653.Published

Before: Conrey

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Holding. The court held that a single, unpremeditated act of violence arising from a sudden quarrel does not constitute extreme cruelty sufficient to warrant a divorce, and that the trial court did not abuse its discretion in denying the decree.

Issues

Whether an appeal lies from an order denying a motion for a new trial in a divorce action.
Whether a single, isolated incident of physical violence constitutes extreme cruelty as a matter of law.
Whether the trial court erred in refusing to hear corroborating evidence that would not have changed the outcome of the case.

Disposition. Appeal from order dismissed; judgment affirmed.

Quotations verified verbatim against the opinion

“The amendment of section 963 of the Code of Civil Procedure, taking away the right of appeal from an order refusing such a motion, took effect on the eighth day of August, 1915.”

“Assuming full proof and ample corroboration of the facts testified to by the plaintiff, those facts do not show any deliberate act or course of action on the part of the defendant whereby he sought to or did become guilty of extreme cruelty”

“Some latitude for the exercise of discretion is permitted to the court in determining what constitutes extreme cruelty, and in this instance that discretion was not abused by the court.”

Synopsis

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a motion for a new trial. J. P. Wood, Judge. Appeal from order dismissed. Judgment affirmed.

The facts are stated in the opinion of the court.

[196]

CONREY, P. J.

This is an action for divorce wherein the defendant did not appear, and the court after hearing the evidence entered judgment. denying the application for a divorce. The plaintiff has appealed from the judgment and from an order denying her motion for a new trial.

[1]

The order denying the motion for a new trial was entered on the seventeenth day of August, 1915. The amendment of section 963 of the Code of Civil Procedure, taking away the right of appeal from an order refusing such a motion, took effect on the eighth day of August, 1915. It follows that the appeal from that order should be dismissed, but the order may be reviewed on appeal from the judgment, taken within due time. (Code Civ. Proc., sec. 956;

Hirsch

All Persons,

173 Cal. 268, [159 Pac. 712].)

The complaint charged personal violence committed by the defendant against the plaintiff on one single stated occasion, and alleged that by- reason thereof grievous mental suffering, anguish, and distress and grievous physical suffering and pain resulted to the plaintiff. The facts shown by the plaintiff’s testimony were as follows: On the evening of the stated day the plaintiff came home after' the defendant had arrived there. Defendant inquired^ why the plaintiff was not at home in time. She informed him that she had been sent for to get their deed to the property which they had purchased. The defendant said that he would call ¡that man up and tell bim he had no business calling her up at that time of day. He took up a desk telephone and attempted to call the party. The plaintiff attempted to interfere. “He said he was going to call them up and cuss them out and. I would not let him phone. ... I just held my finger on the clicker while he was talking to them. . . . And he jerked it loose from me and struck me with it.” At; the end of the encounter “there was the print of his hand úpon my shoulder and my hand was bleeding and my finger was black where he jerked out the knuckle and I had several bruises on my neck. ... Q. Do you know how many times he struck you on that occasion? A. No, I hardly do. . . . He struck me with his fist. I do not know whether it was more than once or not, but I know I fell the three times. . . . I suppose he hit me or I would not have fallen. The most I remember was getting up after the fall. ... He was

Hockerston v. Hockerston

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Synopsis

CONREY, P. J.

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