Johnston v. Johnston

NOURSE, P. J. Plaintiff sued to quiet title to real property. She joined as defendants her son Amedee B. Johnston, her daughter Susan Carolyn Dodd, and Marie Johnston, the divorced wife of Amedee. The first two defendants filed disclaimers, and Marie Johnston alone contested the action and now appeals from the judgment adverse to her.

The controversy relates to a building containing three apartments which the plaintiff acquired in 1924 by means of a trade of other premises which she had acquired in her own right as a widow many years before. The appellant claims some indefinite community interest in the premises. When the apartment house was purchased the plaintiff had the deed run to herself, her daughter, Susan, and her son Amedee. The plaintiff, her daughter and Mr. Dodd moved into one of the apartments, Amedee and his wife occupied another, and a third was rented to parties outside of the family. During the time of his occupancy of this apartment Amedee paid to his mother $45 a month as rental. Susan Dodd and her husband paid the same rental for the apartment which they occupied. Amedee and his wife moved to a place in the town of El Verano, and from that time no further sums were paid by him on account of the premises here in litigation. At about the time of the purchase of the apartment house the plaintiff made a voluntary gift of $1000 each to Mrs. Dodd and to Amedee. After their removal to the town of El Verano the appellant herein started proceedings for a divorce against Amedee and an interlocutory decree of divorce was entered prior to the trial of this action. In that proceeding the trial court found that the parties had a community interest in some household furniture and a one-story bungalow in the town of El Verano, and the wife [25]was awarded the sum of $500 in lieu of all her right to any alimony, and to any interest in the community property. This decree was affirmed on appeal. (Johnston v. Johnston, 33 Cal. App. (2d) 90 [91 Pac. (2d) 142].)

During the course of her testimony in the ease before us the appellant stated that her husband told her in the presence of the plaintiff and Mrs. Dodd that she was to have a community interest in his share of the apartment house site. This conversation was denied by the plaintiff and by Mrs. Dodd, and then the husband was called to the stand and, over the objection of appellant, was permitted to make the same denial. On cross-examination this witness testified that he had at his home an account book which showed the money taken in and paid out on account of the operations of the apartment house and that this book was in the handwriting of his former wife. Demand was thereupon made for continuance of the trial in order to have this book produced in evidence, and this demand was denied upon the ground that it did not appear that the account book would disclose anything in relation to the question of community interest or that the defendant ‘ ‘ could discover anything from the account.”