Kirsch v. Kirsch

McFarland, J. Action for divorce; judgment for defendant, and plaintiff appeals from the judgment upon the judgment roll alone.

The ground of divorce set up in the complaint was extreme cruelty. Defendant filed an “answer and cross-complaint,” in which he denied the alleged acts of cruelty, and set up affirmatively extreme cruelty by plaintiff, and prayed for a divorce on the latter ground. Plaintiff answered the cross-complaint, denying its averments as to cruelty. The amended complaint was filed September 26, 1886. Afterward, on January 10, 1887, defendant, “ by consent of plaintiff, and by leave of court,” filed “amendment to answer and supplemental cross-complaint,” in which he averred that “ on divers days and times between the third day of September, 1886, and the first day of January, 1887, and particularly on the thirtieth day of November, 1886, the plaintiff herein committed adultery with” a certain person named, at a certain named place. The plaintiff made no objection whatever to this last-named pleading, but answered it, calling it' in her answer “defendant’s supplemental cross-complaint,” and denied the averments of adultery. Afterward plaintiff herself filed a supplemental complaint, averring additional acts of cruelty committed since the commencement of the action, viz., on January 13, 1887, Defendant answered, denying its averments. [635]The parties went to trial on the issues raised by these last-named pleadings, as well as upon other issues, and the court found against all the averments of cruelty, but found, also, “ that on divers days and times between the third day of September, 1886, and the first day of January, 1887, and particularly on the thirtieth day of November, 1886, the plaintiff committed adultery with” the person and at the place stated in said so-called supplemental cross-complaint. No motion for a new trial was made; no evidence is brought here by bill of exceptions; and the record does not show any objection or exception whatever.

Appellant now asks a reversal of the judgment, on the sole ground that the so-called supplemental cross-complaint of defendant was insufficient; that it must be regarded as only a defense; that it sets up a new cause of action, accruing after the commencement of the action; that there is no prayer for relief, etc. But the case comes clearly within the rule that where a case is tried upon the theory that the issues are properly joined in the trial court, and no objection or exception is taken' there, it is too late to raise such objections here. (Hiatt v. Board of Trustees, 65 Cal. 481; Spiers v. Duane, 54 Cal. 176; Cave v. Crafts, 53 Cal. 141; Van Maren v. Johnson, 15 Cal. 313.)