Davies v. Fisher

JAMES, J.

Plaintiff sought by this action to secure, a judgment in part requiring her former husband to contribute to the support of a minor child of the plaintiff and defendant. The court rendered judgment agreeable to the prayer of the complaint as to the maintenance, from which judgment this appeal is taken. The plaintiff’s complaint set forth the date of the marriage of the parties in 1894; the fact that they lived together fourteen years, and that for two years last past both had been residents of the state of California and for more than three months had been residents of the county of Los

Angeles;

that on the 4th of March, 1911, the plaintiff had been granted a divorce from the defendant; and gave the name and age of the child which was the issue of the marriage. In the complaint it was then alleged as follows:

‘ ‘

That said child is in immediate need of money and funds for her care, custody, maintenance, support, and education; that plaintiff has nothing wherewith properly or at all to maintain, or support or educate said child, and plaintiff avers that unless assistance or funds are immediately available to the use and benefit of said minor, to wit, for her maintenance and support she will be compelled to subsist upon the charity of friends or such provision as might be forthcoming from the state, her education abandoned, and this plaintiff will be forced to abandon the care and custody of said child; that plaintiff has no money or means with which to prosecute this action; that said defendant is and at all times herein referred to has been abundantly able to provide means for the proper maintenance, support and education of said child, and defendant does now receive for his salary a sum in excess of $120 per month, ...” It

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was further alleged that demand had been made upon defendant to furnish money and means for the purposes mentioned and that defendant had refused so to do. The prayer included not only a request for an order for payment of money, both for the maintenance of the child and expenses of suit, but the further prayer was that plaintiff be awarded the care, custody and control of the minor. In the answer of defendant it was admitted that at the date stated by plaintiff in her complaint, plaintiff had been granted a divorce from defendant; and the further statement in the answer was that such divorce had been granted “by default . . . on the ground of desertion.” Denials were made meeting the allegations as to the necessities of the child, and as a separate defense it was alleged that shortly after the divorce had been granted to the plaintiff she had married one Davies, and that Davies had received the minor child of plaintiff and defendant into his family and treated said child as his own, and that the child had, after the marriage between plaintiff and Davies, been supported by Davies and the plaintiff. By an amendment to the complaint, the plaintiff set forth the decree of divorce which had been granted to her in the state of Nevada. In this decree it was recited that the court had heard sworn testimony and “proof of service of summons and complaint, ’ ’ and had made findings of fact. Appropriate language to effect a dissolution of the marriage was then set forth, and in conclusion it was ordered “that plaintiff is hereby awarded the care and custody of the minor child named Marion Fisher until the further orders of court.” From the record presented it appears that an order to show cause was made herein and that the defendant appeared and testimony was heard respecting the matters iñ issue, and that such matters being submitted to the court, the order followed directing that defendant pay the sum of $20 per month. None of the testimony heard is brought up for examination. As we gather from the printed record, it would appear that the parties submitted the merits of their case upon the order to show cause, although we fail to find any stipulation or appropriate proceeding taken to necessarily indicate that such was the ease. However, the order as finally made has the characteristics of a permanent order—in other words, a final judgment. But whether it be deemed an order or a judgment is perhaps immaterial, in view of the fact that the parties on this appeal in their briefs present the main ques