Bancroft v. Bancroft

RICHARDS, J.,

pro

tem.

This is an appeal from a judgment of dismissal of this action after an order sustaining the defendant’s demurrer to the plaintiff’s complaint. The action was brought by the plaintiff to have set aside an interlocutory decree in the case of

Bancroft

v.

Bancroft, ante,

p. 352, [173 Pac. 582], upon the ground that such decree was procured by collusion between the parties to that action, who are also the parties to this one. The facts out of which this action arose as set forth in the complaint herein are as follows: The parties were married on or about October 30, 1901. Three children were born of this marriage, a daughter named Barbara, now of the age of fourteen years, and two sons, Griffing, Jr., and Hubert Howe, whose ages are now, respectively, eleven and eight years. On October 30, 1914, the plaintiff left the home of the defendant and herself in or near San Diego, with the defendant’s.knowledge and consent, for the purpose of paying a visit to her parents in Washington, D. C., intending and expecting to return to her said home in

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about two months, and without any intention of deserting the defendant; that in the month of January, 1915, the plaintiff received a letter from the defendant informing her that the defendant had decided that they could no longer live together as husband and wife and directing her not to return to their home, and agreeing and promising that he would pay her the sum of $125 as a monthly allowance and permit her to have the custody and care of their daughter Barbara and to see and visit their two sons upon some satisfactory arrangement; that the plaintiff upon receipt of this letter did not return to the home of herself and defendant on account of such direction and arrangement, but went to reside in the city of New York. During the month of May, 1916, the defendant wrote to the plaintiff informing her that he desired and intended to secure a divorce from her, and desired and requested her to consent to such divorce action and to refrain from contesting his application for a decree therein. That the plaintiff thereupon agreed with the defendant not to institute a contest nor offer any objection to his proceeding for a divorce nor to file any answer or offer any testimony therein, provided the defendant would make provision in the decree therein regarding the custody of their children. That thereafter the defendant arranged with an attorney to represent this plaintiff in said action and caused this plaintiff to instruct said attorney to enter her appearance therein as her attorney of record, but to offer no objection to the entry of a decree therein dissolving the bonds of matrimony between the parties thereto. That thereafter and on June 5, 1916, the defendant herein commenced such action for divorce in the county of San Diego against this plaintiff, alleging willful desertion as the ground of divorce; that in accordance with their aforesaid understanding this plaintiff’s attorney so provided entered her appearance therein but offered no objection to the proceedings therein, but facilitated the same in every way possible to the end that the defendant herein should secure an interlocutory decree in his favor in said action. That when said cause came on for trial the defendant herein, as plaintiff therein, testified falsely that this plaintiff had willfully deserted him and that such desertion had continued for more than a year prior to the inception of said action. That no objection was made by or on behalf of this plaintiff to such testimony or to any of the proceedings in said action or to the granting of the