Maier v. Hornlein

STURTEVANT, J. In an action for partition the trial court made findings in favor of the plaintiff and entered an interlocutory decree. From that decree the defendants have appealed and have brought up a typewritten record.

The defendants have so many grievances that they depart from all rules of briefing and present what they claim to be groups 1 to 10 of alleged errors. They argue most earnestly. To understand fully we have read the entire record. We find not a particle of error therein.

Prior to January 5, 1920, Julia Hornlein was a widow and had children. Albert Hornlein was a widower and also had children. On the date last mentioned they married. At the date of their marriage the wife had no separate property but the husband had accumulated some property, real, personal, and mixed. He owned one or more pieces of real estate and was proprietor of a gambling house located at Sixth and Mission Streets in San Francisco. It was known as a club and, from the business conducted, there was evidence his income was as much as $3,000 a month.

The First Bank of Savings of Fort Bragg was the owner of a lot and building near the corner of Telegraph Avenue and 43rd Street in the city of Oakland. The building consisted of stores on the ground floor and several flats above. After certain negotiations the bank, by a grant, bargain and sale deed, conveyed said property to Albert Hornlein and Julia Hornlein, his wife. That deed has never been reformed in any respect whatsoever. The deed recited a consideration of $10, but the evidence shows the actual consideration was $15,000. Albert Hornlein paid down $10,000 and the property was mortgaged for $5,000 which was subsequently paid by the husband out of his separate property. From the time the Hornleins took title they followed the system of collecting the rents, paying taxes, insurance, and repairs, out of those sums and thereafter dividing the balance equally between them.

[700]The evidence discloses they were never happily married and, as they grew older, quarrels ensued. In September, 1935, they separated. Later Mrs. Hornlein filed an action in separate maintenance. The husband appeared, filed a cross-complaint, and asked for a divorce. Such proceedings were had that a property settlement was made between the spouses and an interlocutory decree of divorce was awarded the husband. Based on that decree, at a later date, a final decree of divorce was entered. The interlocutory decree recited the execution and approval of the property settlement made by the parties. The final decree approved such provisions of the interlocutory decree. Said decrees have never been appealed from and are final.