McFadden v. McFadden

By the Court, Wallace, C. J.: The plaintiff, Margaret McFadden, in August, 1861, filed her complaint in the District Court of the Fourth Judicial District against Patrick McFadden, Thomas Stealey, Alfred Eix, Alexander - Eaton, Arnold Hussman, Frederick S. Ell-maker, Adolphus J. Plate, Mary McFadden, Patrick Murray, and John McFadden as defendants, alleging that on the 18th day of October, 1853, she had filed her complaint in the same Court against the defendant Patrick McFadden, who was then her husband, in which she had prayed a dissolution of the bonds of matrimony then existing between [307]herself and the defendant, Patrick, and for a division of the common property belonging to the matrimonial community, and that pending the action the defendant, Patrick, might be restrained, by injunction, from making disposition of it. She further alleged that on the 9th day of November, 1853, an injunction from said Court to that effect was issued and served upon him, and that after further proceedings were had, it was in 1855 decreed that the marital relation be dissolved, and that certain real estate situate in the City and County of San Francisco, in the decree described, being the property of the marital community, together with such other community property as might be thereafter discovered, be equally divided between the plaintiff and the said defendant Patrick, and that Edward Stanley, -Hale, and B. W. Leigh be appointed “ Commissioners to take proofs of property appertaining to said community with full power to divide the same in accordance with the said decree, either setting off to the plaintiff her share thereof, or, if that were found to be impracticable, to cause the same to be sold and to divide the proceeds thereof equally between the parties,” and that the Commissioners report their proceedings in that behalf on or before the first day of March then next ensuing, etc.

The complaint further alleges that this decree of 1855 has never been carried into execution by the Commissioners or otherwise, by reason of the subsequent absence of one or other of them from the State; that the whereabouts of Hale, one of the Commissioners, is now unknown; that in March, 1855, one J. A. Nunez was by order of the Court substituted as a Commissioner in the place of Leigh, but that Nunez is now, and for a long time has been, absent from the State, and that it has become necessary to appoint Commissioners in the place of both Nunez and Hale, to cooperate with said Stanley in making a division of the community property, and otherwise carrying the decree into execution.