Cohn v. Cohn

Foote, C. This is an action for divorce brought by a husband against a wife, on the ground, among others, of acts of “inhuman cruelty.”

The defendant was served with process, and failing to answer, a default was entered against her and a decree of divorce based thereon.

[109]About a month after this she was judicially declared insane, and shortly thereafter placed in an insane asylum. Her guardian appeared for her, while she was in said asylum, and moved to set aside the judgment thus entered.

It is plain that the acts of alleged cruelty were the result of a diseased mind on the part of the unfortunate woman, culminating in her insanity as above stated. We think she was also in the same condition at the date of the service of summons upon her.

This being the state of facts, it seems to us that under, the rule in divorce cases laid down in McBlain v. McBlain, 77 Cal. 507, and Wadsworth v. Wadsworth, 81 Cal. 182, the court below should have set the judgment aside, both upon grounds of public policy and as an act of justice in relieving an unfortunate lunatic of the stigma of “inhuman cruelty” to her husband.

For these reasons, we advise that the judgment and order be reversed, with leave to file an answer on behalf of the defendant.

Vanclief, C., and Gibson, C., concurred.

The Court. For the reasons given in the foregoing opinion, the judgment and order are reversed, with.leave to file answer on behalf of the defendant.

Rehearing denied.