Dillon v. Dillon

BRITTAIN, J.

The defendant, George C. Dillon, appeals from an interlocutory decree of divorce.

Prom the transcript it appears the original complaint was filed February 21, 1917. An amended complaint, on which the case went to trial, was filed June 13, 1917. After general demurrer overruled the case was tried, and the court found that all the allegations contained in the first count of plaintiff’s amended complaint were true. The appeal is on the judgment-roll alone. In the amended complaint it was alleged “the plaintiff has been a resident of the state of California for more than one year last past and of the county of Kern for more than three months next preceding the commencement of this action.”

The appellant contends the quoted allegation does not show the plaintiff had been a resident of the state of California one year prior to the filing or commencement of the action. (Civ. Code, sec. 128.) Further, that the findings that the • allegations of the amended complaint were true do not cure the claimed defect. After the appellant’s demurrer to the amended complaint was overruled, he failed to answer. His default was entered and he did not appear at the trial. The allegations of the complaint, which were found to be true, disclosed an ingenious cruelty on the part of the husband not surpassed in the Middle Ages nor equaled in the harems of the time of the Caliph Haroun al Rasehid.

[1]

It is elementary that the first question which must be determined by the trial court in every case is that of jurisdiction.

(Clary

v.

Hoagland,

6 Cal. 685.) In the absence of all evidence and under'the rule that all intendments are in favor of the action of the superior court, it must be presumed that there was ample evidence of residence within the state for a period of one year before the commencement of the action to support the judgment. The appellant relies on the rule that the fact of residence for the statutory period must be alleged.

(Flynn

v.

Flynn,

171 Cal. 746, [154 Pac. 837].)

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