Gimmy v. Doane

Crocker, J. delivered the opinion of the Court—Norton, J. concurring. [637]This is an action brought by the plaintiff, the wife of John G. Gimmy, one of the defendants, during the pendency of a suit for divorce brought by her against her husband, to restrain the sale and transfer of the common property, to set aside fraudulent judgments confessed by the husband, and a fraudulent conveyance of property by him to his mother, Maria B. Gimmy, one of the defendants, and for a division of the common property between the husband and wife upon the determination of the divorce suit. A default was entered against all the defendants, except Maria B. Gimmy, who filed an answer. Issues of fact were made, and tried by a jury, who found them all for the plaintiff. The Court, after the rendition of the decree granting the divorce in the divorce suit, rendered a final decree for the plaintiff, dividing the common property, in accordance with the decree in the divorce suit, and ordering the proper deeds to be executed by the parties, and enjoining them from conveying, incumbering, or interfering with the property conveyed and set apart to the plaintiff, and from this decree John G„ and Maria B. Gimmy alone appeal.

It is objected that, as the notice appeal was not filed until the lapse of more than one year from the date of default entered against John G. Gimmy, the appeal as to him is too late, and should be dismissed. The statute, however, clearly gives the parties a right to appeal at any time within one year from the rendition of the final judgment in the case. Any interlocutory judgment which may have been rendered does not form the basis for an appeal, and if it did, it would not bar the right of the defendant to appeal from the final judgment which determines the suit between the parties. (Gray v. Palmer, 9 Cal. 616; Johnson v. Dopkins, 6 Id. 83.)

The appellants also contend that the complaint merely avers that certain property is common properly, and does not state sufficiently the particular facts, showing that it is entitled to that character, and that, therefore, it contains no cause of action, referring to the case of Dye v. Dye (11 Cal. 163). The averment is, that “ during the cohabitation of said parties he was possessed of certain real estate, their common property,” etc. The rule is well settled that where a statute gives a right of action, where none existed before, the complaint in such case should show “ that the offense or act charged [638]