Gould v. Gould

WASTE, J.

The plaintiff appeals from an order of the lower court vacating and setting aside a judgment of dismissal and restoring the case to the calendar to be set for trial.

The plaintiff brought an action against the respondent for a divorce upon a number of grounds. The action was originally filed in the superior court of Los Angeles County, the plaintiff alleging herself to be a resident thereof, and was transferred to the county of Mendocino for the reason that the defendant was a resident of that county. The defendant filed an answer, and a cross-complaint in which he sought the divorce. The matter came on in due time for trial, and on the day set therefor both plaintiff and defendant appeared in open court by their respective counsel. The at

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torneys for the plaintiff thereupon informed the court that the plaintiff was not at the time of the commencement of the action a resident of the county of Los Angeles, and in support of that statement laid before the court the facts, from which it conclusively appeared that the plaintiff was not a resident of the county of Los Angeles at the time she filed her complaint, and could not establish a jursidictional fact essential to making out a case for divorce.

(Flynn

v.

Flynn,

171 Cal. 746, 749 [154 Pac. 837];

Dahne

v.

Superior Court,

31 Cal. App. 664 [161 Pac. 280].) As bearing on the subsequent action of the defendant what then occurred is important and is as follows:

“Mr. Mannon (Counsel for Plaintiff) : Under these circumstances, your Honor, I am prepared at this time to state that there is the matter of the custody of the child in this action; that Mr. Gould is entitled to have his day in court, therefore I agree at this time that the case may be set for trial and heard right away now. If counsel on the other side consent that my statement is the facts I am ready to submit the matter. I know what the law is and I am satisfied that there is only one thing to do and that is a dismissal and I consent that the action may be dismissed and that the decision of the court may be held over until Monday or some such time. This is not a matter of collusion but gives Mr. Gould his day in court.