Krause v. Krause

KINGSLEY, J. The sole issue raised on this appeal relates to the construction and effect of section 426b of the Code of Civil Procedure.

Plaintiff wife filed suit for divorce, alleging extreme cruelty in general terms. Defendant husband duly filed his demand, pursuant to section 426b of the Code of Civil Procedure, for a more specific statement of the acts of cruelty relied on.1 Fifteen days later, plaintiff filed her amended complaint, setting out sundry specific acts. Nine days thereafter, defendant answered, denying the acts as alleged and alleging also that “plaintiff by failing to comply with C. C. P. Section [297426]b is barred from proving any acts of cruelty at the time of trial.”2 No further action was taken until seven months later, when the action came on for trial. It is stipulated3 that, at that time, defendant objected to evidence as to the specific acts and that such objection was overruled. Plaintiff was granted an interlocutory decree and defendant has appealed.

It is not here contended that plaintiff’s amendment, when served and filed, was insufficient in its allegations of specific acts. The sole argument is that, the amendment having been five days late, it was mandatory on the trial court to sustain the objection to plaintiff’s evidence.4 We think the contention to be totally without merit.

We are cited to no cases construing section 426b in its present form, and our research has disclosed none. However, there is precedent for decision of the same point with reference to two other statutory provisions of the same class. Under section 454 of the Code of Civil Procedure, a party who fails to file a bill of particulars within 10 days after demand therefor is “precluded from giving evidence thereof.” As early as 1896, the Supreme Court held that, where the bill was filed one day late, but over 40 days prior to trial, the trial court had a discretion to allow evidence to be introduced, the court suggesting, also, that the remedy was by way of a pretrial motion to exclude evidence and not by objection at the trial. (McCarthy v. Mt. Tecarte L. & W. Co. (1896) 110 Cal. 687 [43 P. 391]; and consult Silva v. Bair (1904) 141 Cal. 599, 602 [75 P. 162].) Similarly, section 20052 of the Elections Code requires a contestant to deliver a list of allegedly illegal votes at least three days prior to the date set for hearing an election contest under the sanction that “No testimony may be received of any illegal votes except those which are specified in the list.” In Benson v. Superior Court, supra (1963) 214