John v. Superior Court

SHAW, J.

This isan application for writ of

certiorari.

In an action for divorce brought by Joseph S. John, against the petitioner, Lydia M. John, it was alleged that certain real property therein described was the separate property of the plaintiff in said action and that plaintiff had declared a homestead thereon. The default of the defendant was duly entered, followed on January 31, 1905, by an interlocutory judgment, whereby it was adjudged that plaintiff was entitled to

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a divorce, and that the homestead set out in the complaint was the separate property of the plaintiff and should be set aside and awarded to him. Nearly one year after the entry of this judgment the defendant, who is petitioner here, interposed certain motions having for their object the reopening of the case so far as it disposed of the real estate, all of which motions were denied, and on May 26,1906, and after the death of the plaintiff, Joseph S. John, which occurred March 8, 1906, the court rendered its final decree in accordance with the interlocutory judgment and decision had upon the trial of the case.

Petitioner contends: 1. That that part of the interlocutory judgment adjudging the real property to be the separate estate of the plaintiff was and is in excess of the jurisdiction of the court; 2. That the final decree, by reason of the fact that it was rendered after the death of Joseph S. John, the plaintiff in said action, was and is void. Neither position is tenable. It appears from the complaint that certain real estate therein described constituted the homestead of the parties, and it was alleged that the said real estate so homesteaded was the separate property of the plaintiff. Section 147, Civil Code, requires that “the court, rendering a decree of divorce, must make such order for the disposition of the . . . homestead, as in this chapter provided.” And section 146, Civil Code, provides: “In case of the dissolution of the marriage, . . . the homestead shall be assigned as follows: ... 4. If a homestead has been selected from the separate property of either, it shall be assigned to the former owner of such property. ...”

It clearly appears from the above-quoted provisions of the code that it was the duty of the court to determine whether or not the real estate described in the complaint was the separate property of the plaintiff as therein alleged. It was an issue in the case, and section 131, Civil Code, contemplates that all issues embraced in the pleadings shall be tried and determined at the time when, and upon the trial wherein, the court determines whether or not “the divorce ought to be granted.” It is at this time that the court is required to “file its decision and conclusions of law as in other cases,” and this decision must respond to all the issues involved in the action.