Morgan v. Morgan

LENNON, J.

This is an appeal from a judgment granting to respondent herein a decree of divorce from her husband on the ground of habitual intemperance, and incidentally thereto adjudicating certain property rights. Plaintiff’s alleged cause of action for divorce on the ground of habitual intemperance had accrued prior to October, 1912, at which time plaintiff and defendant separated and have ever since lived separate and apart. The complaint alleged that “said defendant used intoxicating liquors for more than one year prior to the twenty-second day of October, 1912, to such an extent that he was wholly incapacitated from attending to any labor, work, or business.” In December of 1912, the same year, defendant was apprehended on a complaint charging him with insanity and was found to he suffering from alcoholism. He was committed to the state hospital for the insane at Patton and remained there until June, 1913-, at which time he was paroled. He immediately resumed the use of intoxicating liquors and was recommitted to the institution in August, 1913, where he remained until the spring of 1917, when he was again paroled. In February, 1918, he was finally discharged.

[524]

The sole point presented in support q£ the appeal which comes here on the judgment-roll alone is that plaintiff’s cause of action was barred by section 124 of the Civil Code and section 343 of the Code of Civil Procedure.

Section 343 of the Code of Civil Procedure, which provides that all actions other than those specified in the preceding sections of that code relating to the time for the commencement of actions must be commenced within four years from and after the time of the accrual of the cause of action, has no application to divorce actions, for the reason that section 127 of the Civil Code, dealing specifically with actions for divorce, provides that there shall be no limitation of time for the commencement of actions for divorce except such as are contained in section 124 of the Civil Code.

Section 124 of the Civil Code provides that a divorce must be denied: (1) When the cause is adultery and the action is not commenced within two years after the commission of the act of adultery or after its discovery by the injured party; (2) when the cause of action is conviction of a felony and the action is not commenced before the expiration of two years after a pardon or the termination of the period of sentence; and (3) in all other cases when there is an unreasonable lapse of time before the commencement of the action. It is upon the latter provision, of course, that the appeal of defendant is based.