Bedan v. Turney

California Supreme Court Oct 9, 1893 No. No. 19159Published

Before: Harrison

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Holding. In an action for criminal conversation, the husband's right of action is based on the violation of his personal rights through the wife's sexual intercourse with another, and it is immaterial whether such intercourse was accomplished by force or consent.

Issues

Whether a bill of exceptions entitled 'on motion for a new trial' may be used on appeal from a final judgment.
Whether a husband must prove that sexual intercourse between his wife and another was accomplished by force or against her will to recover in an action for criminal conversation.
Whether a husband's right of action for criminal conversation depends on his own impotence or capacity.

Disposition. reversed

Quotations verified verbatim against the opinion

“The foundation of the husband’s right of action is the wrong done him by the defendant in violating his personal rights.”

“Her sexual intercourse with another is an invasion of his rights, and it is immaterial whether this invasion is accomplished by force or by the consent of the wife.”

“The judgment is reversed and a new trial ordered.”

Synopsis

Appeal—Bill of Exceptions on Motion for New Trial. —Any bill of exceptions settled may be used upon appeal from a final judgment; and an objection to the consideration of alleged errors in instructions to the jury, upon the ground that the appeal is taken from the judgment alone, and that the rulings are only found in a “ bill of exceptions on motion for a new trial,” is without merit.

Id. — Appeal from Judgment Boll—Error Appearing not Presumed Cured —Bill of Exceptions not Embodying Evidencie.—Upon an appeal from a judgment upon a judgment roll alone, nothing can be assumed or considered that does not appear upon the face of the roll. If that discloses error it cannot be assumed that the error was cured by matter not appearing in a bill of exceptions which form part of the judgment roll, though it does not purport to contain all the evidence.

Action of Criminal Conversation—Proof of Intercourse Sufficient—Incidents Affecting Damages.—It is not necessary, in order to entitle a husband to recover in an action of criminal conversation, that he should show that the sexual intercourse between the defendant and the wife was accomplished by means of force, or against her will; but it is sufficient if he shows the mere fact of the intercourse. The means by which the intercourse was effected are hut incidents to increase or mitigate the damage.

Id.—Immaterial Questions—Plaintiff’s Capacity—Paternity of After-born Child—Matrimonial Intercourse.—In an action of criminal conversation the plaintiff’s right of action depends solely upon the defendant’s carnal intercourse with the wife, and not upon the plaintiff’s impotence or capacity; and the question as to whether an after-horn child was begotten by the husband or the defendant, or as to whether there had been any matrimonial intercourse between the husband and his wife, is immaterial.

Harrison, J. Action of criminal conversation. Judgment was rendered in favor of the defendant, and the plaintiff has appealed, assigning certain errors of the court in its instructions to the jury.

The respondent makes a preliminary objection to the consideration of these errors upon the ground that the appeal is taken from the judgment alone, whereas the rulings are only found in a “ bill of exceptions on motion for a new trial.” Section 950 of the Code of Civil Procedure, however, provides that “on an appeal from a final judgment the appellant must furnish the court with a copy of the judgment roll, and of any bill of exceptions or statement in the case upon which the appellant relies. Any statement used on motion for a new trial, or any bill of exceptions sdtled, may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing the new trial.” The fact that the bill of exceptions in the present case is entitled a “bill of exceptions on motion for a new trial” is immaterial.

It is also urged by the respondent that inasmuch as the bill of exceptions does not purport to contain all the evidence before the court below, the instructions given by the court cannot be regarded as prejudicial unless they were erroneous in every conceivable view, and that for the purpose of sustaining the judgment in the present case, it may be assumed that there was evidence to the effect that plaintiff connived at the criminal conversation of the defendant with his wife.

The purpose of a bill of exceptions is to preserve a record of the rulings or decisions of the court, and by section 650 of the Code of Civil Procedure, the party desiring to have his excep- / tions settled is to prepare a draft of a bill which shall contain^ all the exceptions upon which he relies, and to this draft the [652]opposite party may propose amendments. The bill does not become effective until it is settled by the judge, and by the same section he is directed “to strike out of it all redundant and useless matter, so that the exceptions may be presented as briefly as possible.” If in such proposed draft there is inserted a ruling of the court deemed by the party preparing the same to be erroneous, it is the duty of the opposite party to present in his amendments any matters which would obviate the apparent error, and it must be assumed that the judge in settling the bill has caused to be inserted therein all matter which is relevant to his ruling, or will explain the same. (Hyde v. Boyle, 89 Cal. 590.) This bill of exceptions forms a part of the judgment roll, and of the court’s record of its own acts; and for the purpose of determining whether this record contains any error, oidy the record itself can be examined. When an appeal from a judgment is heard upon the judgment roll alone, nothing can be assumed or considered that does not appear upon the face of that roll. If that discloses error, we can no more assume that it was cured by some matter which does not appear therein, than we can consider matters outside of the roll for the purpose of impeaching the correctness of the judgment. In each case the record must be judged by itself alone.

Bedan v. Turney

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