Sweet v. Sweet

[787]

STURTEVANT, J.

The plaintiff commenced an action to obtain a decree of divorce from the defendant on the ground of desertion. The defendant did not appear, her default was entered, and the plaintiff thereafter introduced evidence and the trial court denied him a decree. From that judgment the plaintiff has appealed under section 953a of the Code of Civil Procedure.

The case was called for trial on November 22, 1922. The plaintiff took the stand and testified that he and the defendant had resided at Salinas for about two years when, on the first day of December, 1920, she left his bed and board; when she left it was against his will and without his consent; he did not know any particular reason why she left, only she did not want to live there; it is a fact that she showed a disposition, or rather her idea was she did not care particularly to live with him any more, she wanted to go home and live at San Jose where her folks were. Several of the foregoing statements were made in reply to leading questions and some were made as mere conclusions— the witness not stating any probative facts. After the plaintiff had left the stand Erwin Collins testified that he knew that the defendant resided at San Jose at the time of the trial. He had known Ernest Sweet for the last two years and Mrs. Sweet had not been at Salinas during that time. He knew Ernest Sweet and knew where he lived at the time of the trial; he lived alone and had lived alone for a period of two years. Thereupon the trial court remarked, “It will require additional corroboration. The mere living apart is not sufficient. Ton will have to show the wife was at fault. I will have to have something to show that she deserted her husband—that she stated to someone, or admitted in some way she did not intend to live with her husband, or did not intend to come to Salinas. That corroborative proof is necessary.” The further hearing of the action was continued until December 28, 1922. At that time Mrs. H. H. Heilman was called as a witness and testified that she knew the defendant; that the defendant at the time of the trial resided at San Jose, and had resided there probably around about a year. “She is working in Gross

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Sons dry-goods store and has an apartment house she rents. She has been renting it for about a year.” In reply to questions propounded by the court the witness