Kelsey v. Miller

WORKS, J.

This is an appeal from an order granting a preliminary injunction. The order was made upon the verified complaint, there having -been no showing in the cause contrary to the one made by that pleading. Thé allegations of the complaint are set forth, in part, in the opinion of this court in

Miller

v.

Superior Court,

59 Cal. App. 334 [210 Pac. 832],

It is contended by appellants that the trial court, sitting as it was in the exercise of its ordinary powers as a court of equity, was without jurisdiction to grant the preliminary injunction. This point is made upon the ground that the relief asked for in the complaint was grantable only by the superior court in the exercise of its probate jurisdiction in the matter of the Estate of Mary Moore Miller, Deceased. This point, however, is no longer open, as it was settled adversely to the contention of appellants in

Miller

v.

Superior Court,

supra.

[388]

Appellants’ next contention is that the complaint fails to allege facts warranting the issuance of the preliminary injunction, which, to state its effect in general terms, restrainéd appellants from dealing with, and from removing from defendant banks or from the state, any of the moneys or properties averred in the complaint to belong to the Estate of Mary Moore Miller, Deceased. In passing upon this contention it becomes pertinent to state allegations of respondent’s pleading which were omitted from the opinion in

Miller

v.

Superior Court, supra,

as unnecessary to a decision of the points there considered, in addition to the averments there set forth. It is alleged that, upon information and belief, Jared was never the husband of Mary, but that for the purpose of cheating and defrauding Mary and her estate, and in connivance with his present wife, appellant Cecil, formerly known as Cecil A. Sheward, he falsely and fraudulently induced Mary to believe and she did believe during her lifetime that she was his lawful wife; that on or before August 15, 1915, and for a number of years theretofore, Jared was the legal husband of one Irene E. Miller; that on August 15, 1915, an action for divorce was commenced by Irene against Jared in the superior court of the state of California, in and for the county of Alameda; that on August 30, 1915, he filed his answer to the complaint in that action; that on September 28, 1915, an interlocutory decree of divorce was rendered in favor of the plaintiff in that action; that prior to October 13, 1915, at Memphis, Tennessee, and prior to the making or entry of any final decree in the divorce action, Jared went through a purported marriage ceremony with Mary; that Cecil A. Sheward loaned or supplied to Jared the funds necessary to enable him to proceed from California to Memphis for the performance of that ceremony and also the funds with which he paid the expenses of a trip with Mary following the ceremony; that Cecil A. Sheward was one of the witnesses to the will of ' Mary; that Jared alleged in his petition for letters testamentary in the matter of the Estate of Mary Moore Miller, Deceased, that the property of the estate in Los Angeles County, where he and Mary had resided since their purported marriage, did not exceed in value the sum of $1,350 and that there was other personal property of the estate in Michigan of the value of $7,500; that this allegation was