Krzepicki v. Krzepicki

LORIGAN, J.

This is an action for divorce brought in the superior court of Los Angeles County.

Plaintiff is a resident of California, defendant a resident of New York.

The complaint, after alleging the marriage of the parties in the city of Lututow, Poland, Russia, in 1895, alleged “that in the year 1908 in the city of Lututow, defendant deserted plaintiff and since that date has neglected and refused to provide plaintiff with the necessaries of life and had neglected to live with plaintiff and support and maintain her, though able to do so, ’ ’ and prayed for a divorce. It is conceded that the year 1908 mentioned in the complaint and printed in the record is inaccurate and should be 1898. The complaint was filed April 13, 1911.

Defendant answered the complaint denying the above allegations and further plead in bar to the maintenance of the present action a judgment made and entered on April 19,1910, at a special term of the supreme court of the state of New York in an action for limited divorce brought therein by plaintiff against defendant.

When the present case was called for trial an exemplified copy of the record in the action in the supreme court of New

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York was introduced in evidence whereupon the superior court, holding that the judgment in that action was a bar to the maintenance. of the present suit, declined to hear any other evidence upon the issues in the case and denied plaintiff a divorce. Plaintiff appeals from this judgment.

The only question presented on this appeal is whether the superior court was correct in holding that the judgment of the New York court constituted a bar to the present action. The exemplified copy of the record in the action in New York shows that in December, 1908, plaintiff and defendant then residing in the city of New York in that state, plaintiff brought an action against defendant for divorce, alleging their marriage in the town of Lututow, Russian Poland, that they lived together in the town of Wielum, Russian Poland, for a few months and “that the defendant left and abandoned the plaintiff a few months after the aforesaid marriage and has since left the plaintiff abandoned and destitute without any means of support in the aforesaid town of Wielum, Russian Poland.” It is then alleged that “since the above-named defendant abandoned and deserted the plaintiff, went to the city of New York, state of New York, and since said abandonment and desertion resided therein, and that during the said time, has failed to contribute anything toward the support of the above-named plaintiff.” The prayer was for a separation for life from bed and board and requiring the defendant to contribute toward the support of the plaintiff. Defendant answered denying all the allegations of the complaint save their marriage and set up affirmatively that in December, 1905, at Wielum, Russian Poland, the plaintiff deserted him and had refused to live with him.