Barnes v. Barnes

The Court. Action for divorce upon the ground of extreme cruelty. Judgment was entered in favor of plain!iff, and the defendant appeals.

1. After the filing of the complaint in this action, and before any appearance on the part of defendant, the attorney for plaintiff filed with the clerk of the superior court a paper properly entitled in the cause, and stating, “ The above-entitled action is hereby dismissed,” but no judgment of dismissal was entered. It is claimed by appellant that upon the filing of this paper the court lost jurisdiction of the action, and that jurisdiction was not restored by the subsequent appearance and answer of defendant. This objection to the jurisdiction of the court was made in various forms in the court below, and overruled. The court did not err in its rulings upon this point. The filing of the paper referred to was in effect an order for a dismissal of the action, and would have been sufficient authority for the clerk to h&ve entered a judgment of dismissal, but until the entry of such judgment the court retained jurisdiction of the case. (Page v. Superior Court, 76 Cal. 372; Acock v. Halsey, 90 Cal. 215; Rochat v. Gee, 91 Cal. 355.)

2. It is urged by appellant that the facts alleged in the complaint and found by the court do not entitle plaintiff to the decree, which he obtained, dissolving the marriage which existed between him and appellant. The cruelty alleged and found is, that appellant inflicted grievous mental suffering upon plaintiff, by imputing to [175]him, in the presence of others, the grossest immorality and personal impurity. It is not necessary to state here, with any particularity, the language by which these charges were made. It is sufficient to say that such charges, if false, were well calculated to bring upon a person of ordinary sensibility grievous mental suffering. But it is not alleged in the complaint, nor is it found by the court, that the charges of which plaintiff complains had any injurious effect upon his health, and for this reason it is claimed that the complaint and findings do not support the judgment, under the law as declared by this court in Waldron v. Waldron, 85 Cal. 251. It was held in that case that a finding to the effect that the defendant had inflicted upon the plaintiff therein grievous mental suffering, but without injury to her health, was not equivalent to a finding of extreme cruelty upon the part of the defendant, and would not sustain a judgment for divorce upon that ground; and in discussing the question as to what constitutes such extreme cruelty as will justify a divorce, the court said: “ Although the character of the ill treatment, whether it operates directly upon the body, or primarily upon the mind alone, and all the attending circumstances, are to be considered for the purpose of estimating the degree of the cruelty, yet the final test of the sufficiency, as a cause of divorce, must be its actual or reasonably apprehended injurious effect upon the body or health of the complaining party.” And it was further said in that case, “ that the practical view of the law is, that a degree of cruelty which cannot be perceived to injure the body y^ihe health of the body * can be practically endured/ ^Jproiísí be endured if there is no other remedy than by divorce; because no scale ’ by which to gauge the purely mental susceptibilities and sufferings has yet been invented or discovered, except such as indicate the degrees thereof by their perceptible effects upon the physical organization of the body.”