Loudon v. Loudon

WASTE, P. J.

This is an action for divorce brought by the plaintiff upon grounds of desertion and extreme cruelty. Defendant denied the allegation of the complaint, and by way of recrimination charged the plaintiff with many acts of alleged cruelty, inflicted upon her by the plaintiff, and with failing to properly support defendant and the two minor children of the marriage. She prayed for the custody of the children, for a division of the community property, and for counsel fees and expenses of maintaining the action. The trial court made full and explicit findings, the ultimate facts found being that the defendant left the plaintiff, by reason of the harsh and cruel treatment of the defendant, and said minor children, by the plaintiff, and that the plaintiff was guilty of extreme cruelty toward the defendant, in that he caused her grievous mental suffering.

The plaintiff was denied any relief, and judgment was entered in favor of the defendant that she recover, from the plaintiff, the sum of two hundred dollars, as her reasonable attorney’s fee, also her costs of court and all moneys necessarily expended by her in defense of the action, taxed at and allowed for the sum of $285.50. From this judgment the plaintiff appeals.

Appellant first attacks the finding of the trial court as to the residence of the parties. The original complaint was, filed January 29, 1918, and the amended complaint was filed March 11th, the same year. It is granted by appellant that in each of these pleadings the averment of residence was sufficient. The truth of the allegation was admitted in the answer, and appellant further concedes, and the record dis

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closes, that the fact of the jurisdictional residence of the parties was clearly established and amply corroborated by the testimony taken at the trial in the court below. The finding is “that the plaintiff and defendant have each been, and now are, residents of the county of Los Angeles, state of California, for more than one year last past.” The findings were filed August 8, 1918. Appellant contends that this is not a finding that the parties, or either of them, resided within the jurisdiction of the court for one year, next preceding the commencement of the action, but is “a finding of no jurisdiction for want of residence.” He reasons, “of course plaintiff’s divorce must be denied on such a finding, which is contrary to the evidence.” On this ground he demands a reversal.