Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1888-05-05
DIVORCE PROCEEDINGS.
IMPORTANT DECISION BY JUDGE
VAN FLEET.
Cross Complaint for Affirmative
Relief May be Resorted to
in Such Gases.

swer in the nature of a cross-bill, asking
for affirmative relief in divorce cases, is al
lowable under the Code.
The question arose in the case of Louis
Duensing VS.. Mary E. Duensing, in which
Grove L. Johnson appeared for the plain
tiff and Charles T. Jones for the defendant
Mr.. Johnson demurred to the cross COM
plant on the ground that the Code did not
provide for a cross-complaint in actions for
divorce, and Judge Van Fleet Yesterday
oyerruled the demurrer.
In deciding the case of Haley VS.. Haley
recently, the Supreme Court intimated that
it was at least doubtful whether the Codes
provided for cross-complaint in actions
for divorce, and acting upon this intima-
ton several Judges OF Superior Courts in
the State have sustained demurrers to an
swers coupled with bills. Judge Van
Fleet differs with the learned judges on
this point. Following is the opinion in
full:
In the Superior Court, county of Sacra-
mento, State of California. Department
Two.-Louis Duensing vs. Mary Z. Duens-
ing.
This is an action for divorce Defendant
filed an answer, and coupled Herewith a
cross bill or complaint, in which she seeks
affirmative relief by way of divorce against
plaintiff. Plaintiff demurs to the cross
complaint, and makes the point that the
cross action will not lie in divorce proceed
ings; that Section 442, Code of Civil Pro-
cedure providing for cross complaints, has
no application to actions for divorce. The
question has never been directly raised or
passed upon in the Court of last resort in
this State; but plaintiff cites and relies
upon suggestion made by the Court in
Haley VS.. Haley (16 Pacific Reports, 24S),
recently decided by the Supreme Court. In
that case the point did rot arise, nor, so far
as the record discloses, was it discussed by
counsel but the Court in passing says: 1T
may not be improper to remark that it is at
least doubtful whether the Codes provide
for a cross-complaint in actions for divorce.
discrimination is a showing by the de-
fendant of any cause of divorce against the
plaintiff IN bar Of the plaintiff cause of d.
Uorce.' Civil Code, Sec. 1927 An action
for divorce is not brought on the con-
tract of marriage, but upon certain viola
tons of duties or obligations annexed to
the status of matrimony, which are
enumerated in Section 80, Civil Code, as
causes for which divorce may be granted.
discriminatory facts should be pleaded, but
as a defense simply, and in bar of the
plaintiffs cause. When in bar of an action
for divorce the defendant pleads the COM
mission by the plaintiff of any of the
wrongs mentioned in Section 90, Civil
Code, and prays for divorce, does he seek
affirmative relief relating to or depending
upon the transaction upon which the
action is brought? If not, Section 442,
Code of Civil Procedure, does not apply to
actions for divorce. Nor is there any gen.
eral principle, independent of the Code,
which authorizes a cross complaint in
actions for divorce to prevent multiplicity
of suits The statute regulates the matter
in other cases; and the law does not so
specially favor actions for divorce as to
make them exceptions to rule otherwise
uniform"
This language is very plain and forcible
and bears directly upon the point at issue,
and coming from the source it does is en-
titled to the highest consideration. I'm
doubleday, II given as an authoritative ex-
preston of the views of the Court in case
where the question was involved and sub
ject to adjudication, it would be determin-
alive of the question here and should and
would govern my action as to the law in
this case. But it will be seen, as suggested,
that the language used was not necessary
to determination of the case in which it
occurs, nor directly pertinent to any ques-
ton involved therein, and it therefore can
only properly be regarded as obiter on the
question, and not such an expression as
would Justify me in following it as author
ity. AS opposed to it, it is undoubtedly
true, as commended by the defendant, that
this character of pleading in actions for
divorce has been heretofore tacitly recog-
niZed and approved b. the Supreme Court
of this State for many years, and acquiesced
in without challenge by the bar generally
This is but negative argument in favor of
its propriety, but nevertheless it is an argu-
ment which has been considered by Courts
as having more or less weight, according to
the length of time practice has prevailed
In the case of Coulthurst VS.. Coulthurst (56
Cal. 239), the question as to the sufficiencv
of cross complaint was heard and de-
termined by the Court, it being assumed
that the provisions of Section 442 of the
Code of Civil Procedure applied to actions
for divorce. In Lowell VS.. Lowell (55 Cal
3l6) divorce was granted the defendant in
the Count below upon his cross-complaint
and prayer for affirmative relief, and the
judgment was affirmed ON appeal While
the question involved was not raised in
those cases, the same question has recently
been determined by the Supreme Court of
Oregon in the case of Dodd vs. Dodd (l3
Pac. Rep. 500. The question arose under
provisions of the Code of Oregon not dis
similar to the provisions on the subject
found in our Code of Civil Procedure (Se,.
and the right to interpose cross
complaint is distinctly upheld. The Court
says: THE only legal question presented
is whether an answer in the nature of a
cross-b bill, asking for affirmative relief, is
allowable under the Code. Unless it is,
the defendant has no ground for appeal
The right is claimed to exist by force of
Section $50 of the Code, which provides
that the counter claim of the defendant
shall be one upon which a suit
might be maintained by the defend
ant against the plaintiff in the
suit; and, in addition to the cases
specified in the subdivision of Section 70,
it is sufficient if it be connected with the
subject of the suit This provision, as a
whole, is quite similar to Section $50 of the
New York Code. In B vs.. b
I'll n. Y. Leg. Obs, 800, it was held, after
a full ana careful consideration, that such
an answer was a counter-claim within the
provisions of Section $50 of New York
Code, and this was approved in an
case. II Abb Pr, As, as cor
rect in principle and satisfactory in reason
ing. Subsequently, however, the doctrine
of B VS.. B, supra. was disapproved
by majority of the Court, in H vs..
H 40 Barb, 10Y. But it would seem
now that the practice is settled in that State
to allow an answer in the nature of a cross
bill for the purpose of obtaining affirmative
relief. In Campbell VS.. Campbell IL
Hun, 636), it is said There is no good
reason why this right should not exist, and
many why it should. The proceedings in
this class of cases are sui generis and
when the pleadings present issues of this
kind, and in the form presented in this
case, such party is an actor, and cannot be
deprived, without bis or her consent, of
the right to pursue affirmative relief. (See
also, Bleck VS.. Block, q Hun, 296; 2
Abb, form 100, form 1,0S9). Mr.. Bishop
says: The practice of bringing in a cross
bill by the defendant against the plaintiff,
to aid the defense, and likewise obtain
affirmative relief, may be resorted to in
these divorce cases, as well as in any other
This way is open to the defendant equally,
whether the proceeding is by bill of equity,
by libel corresponding TO the ecclesiastical
libel, or by statutory complaint q
Bish., Mar. and DIV, Section 3i6)
1T seems 10 US that the language of Sec
ton $50, supra, is broad enough to author
ize the defendant, in /. suit of this kind, to
put in an answer by way of counter-caim,
not only for the purpose of defeating the
plaintiff S right of suit but also for the