Marshall v. Marshall

THE COURT.

This appeal is from a judgment of the trial court denying a decree of annulment of the marriage of the plaintiff and defendant in the action therefor instituted by the plaintiff, after her marriage with the defendant and the consummation thereof, and after she had lived with the defendant for a period of several months. The basis of the plaintiff’s action was the alleged fraud of the defendant in procuring her consent to enter into the marriage, which she alleged consisted in the false and fraudulent representation of the defendant that he was a man of means, having sufficient funds and income to provide for the plaintiff’s support and maintenance during their married life, and that he would support and maintain her in the position in life to which she was accustomed, upon which alleged false and fraudulent representation the plaintiff avers that she relied in consenting, entering into and consummating said marriage. The plaintiff sets forth in detail the extent to which the representations of the defendant in the foregoing regard were unfounded and the humiliation she suffered thereby, and on account whereof she left the defendant and ceased to cohabit with him when the fact of his impecunious situation and harassment by creditors became known. The defendant was served by publication and failed to appear and contest the action. Nevertheless the trial court upon the hearing and upon proof of the foregoing facts refused to grant to the plaintiff an annulment of her marriage with the defendant and entered a judgment denying such annulment. The plaintiff appealed from the judgment. The defendant has failed to make any appearance upon the appeal and has filed no brief thereon, nor otherwise responded ■to an order to show cause issued herein. There has been

[738]

presented, however, the brief of certain attorneys who, at the request of the trial court, undertook to file said brief as

amici curiae,

dealing with the matter of annulment of marriages, a sufficiently public matter to justify said course.

The fraud upon which the plaintiff relied as her sole ground for the annulment of her marriage with the defendant consisted in his alleged fraudulent representation as to his wealth and ability to support and maintain her during their married life in the position in life to which she had been accustomed. Such fraudulent representation, conceding it to have been made and to have been relied upon by the plaintiff, did not, in our opinion, amount to the species of fraud contemplated by subdivision 4 of section 82 of the Civil Code as constituting a sufficient ground for the annulment of a consummated marriage under the provisions of said section of the code. In the case of