Marshall v. Marshall

KNIGHT, J. This appeal was taken on the judgment-roll alone. The sole question presented is whether the trial court, after having denied plaintiff a divorce, exceeded its jurisdiction, as defendant contends, in decreeing, in accordance with the allegations of the complaint, that plaintiff was the sole and separate owner of a lot described therein.

[707]An analogous situation was before the Supreme Court in the case of Allen v. Allen, 159 Cal. 197 [113 Pac. 160, 162], in an appeal from a judgment rendered in an action to set aside a deed', and it was held that the trial court did not exceed its jurisdiction. There, as here, the wife had sued for divorce and claimed certain real property as her separate property. She was denied a divorce. It was awarded to the husband on his cross-complaint. Nevertheless the trial court found and gave judgment that the wife was sole and separate owner of said real property. In sustaining the trial court’s action in so doing, the Supreme Court said: “ ... it is no doubt true, as urged by respondent, that as a general rule the superior court in a divorce proceeding has no jurisdiction to deal with the separate property of the spouses. But the superior court in which the action for divorce must be brought is also invested with general jurisdiction to determine title to real property, whether based on legal or equitable claims, and if the parties in a divorce proceeding see fit to make the character of property held by them—whether separate or community—an issue in the proceeding, as the court is vested with jurisdiction to determine that question, as fully as if the title were put in issue in a direct action brought for that purpose, the same effect must be given to its judgment as if such an action had in fact been brought.” The same doctrine was restated and applied in Carr v. Carr, 39 Cal. App. 53 [177 Pac. 856], wherein the court said: “Conceding that in an ordinary proceeding for divorce the court is not authorized to dispose of the separate property of either party, that rule does not apply in a case where the action is dual in its character, seeking not only a divorce but an adjudication as to the separate character of certain described property and a decree in effect quieting plaintiff’s title thereto. The issue as to the property having been fairly made and by both parties submitted to the court for determination, the court had jurisdiction to determine the question involved as to the character of the property and to quiet the title of the rightful owner thereto. (Glass v. Glass, 4 Cal. App. 604 [88 Pac. 734]; Allen v. Allen, 159 Cal. 197 [113 Pac. 160].)” Another case holding to the same effect is Barrow v. Barrow, 42 Cal. App. 51 [183 Pac. 364].