Mini v. Mini

VANCLIEF, C. Action for divorce on the ground of adultery. After the statement of a complete cause of action for a divorce on the ground of adultery the complaint contains the following: “That the plaintiff is possessed of considerable property, both real and personal, situate and being in the said state of California, all of which is the separate property of the plaintiff, having been acquired by him before his said marriage, or acquired by him subsequent thereto, from the rents, issues, and profits thereof.” The prayer of the complaint is for a divorce, ‘ ‘ and that it be adjudged and decreed therein that the said defendant has no right, title, claim or interest in or to said property owned and possessed by plaintiff, or any part thereof.” Summons having been regularly served on the defendant in the county of Solano, in which the action was brought, she failed to appear by demurrer or otherwise, and judgment for the relief prayed for was rendered against her by default. The judgment describes the separate property of the plaintiff, in which it was adjudged that the defendant had no title nor interest, with great particularity and certainty. The defendant brings this appeal from the judgment, and the only ground upon which a reversal is asked is that the complaint does not describe [433]the separate property of the plaintiff with sufficient certainty. Conceding that, in respect to the alleged separate property, the description thereof was not sufficiently definite or certain, the defect was waived by defendant’s default and failure •to demur: Code Civ. Proc., sec. 434; Gimmy v. Gimmy, 22 Cal. 633; Kelly v. Murphy, 70 Cal. 560, 12 Pac. 467. In the absence of a special demurrer, the allegation was a sufficient foundation for evidence of a definite description of the property: Bates v. Babcock, 95 Cal. 484, 29 Am. St. Rep. 133, 16 L. R. A. 745, 30 Pac. 605; San Francisco v. Pennie, 93 Cal. 468, 29 Pac. 66; Schluter v. Harvey, 65 Cal. 158, 3 Pac. 659; Garner v. Marshall, 9 Cal. 269. I think the judgment should be affirmed.

We concur: Haynes, C.; Belcher, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is affirmed.