Coleman v. Coleman

KERRIGAN, J.

This is an appeal from a judgment denying a divorce to plaintiff, and granting a divorce to defendant on his eross-complaint. There is also an appeal from the two orders made by the court after the entry of the interlocutory decree of divorce, the first order being one denying plaintiff permission to file notice of intention to move for a new trial after the time for the filing of such notice.had expired, which relief was sought under the terms of section 473 of the Code of Civil Procedure; and the second order being one denying plaintiff alimony, costs, or counsel fees pending appeal.

It is claimed by the appellant that the interlocutory decree of divorce which was granted to the defendant upon his cross-complaint, is not sustained by the findings of fact. In support of this claim we are referred to the finding as to the residence of the parties. That finding recites that plaintiff and defendant are both residents of the city and county of San Francisco, state of California, and “have been residents in said city and county and state for a period of more than

one year now last past.”

We agree with appellant that this is not a finding that the parties had resided in San Francisco for that period of time prior to the commencement of the action.

[425]

Section 128 of the Civil Code provides that no divorce shall ■be granted unless the plaintiff shall have been a resident of the state of California for a period of one'year, and of the county in which the action is brought for a period of three months, next preceding the commencement of the action. No divorce can be had unless this jurisdictional fact appears, and the proof thereof is a prerequisite to the granting of the divorce. A mere admission in the pleadings of such residence is insufficient. A plaintiff in a divorce case must aver and prove that he or she has been a

bona, fide

resident for the requisite period.

(Bennett

v.

Bennett,

28 Cal. 600;