Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1888-05-05

to critical examination of the subject. II
would seem that the provisions OF cur
Code of Civil Procedure on this subject are
at least as bread and comprehensive as
those of Oregon and New York. 1t is
said in Haley VS.. Haley, supra, that
an acton for divorce is not brought
on the contract of marriage" This is
true, perhaps, in direct sense, but is it
true in the Comprehensive sense in which
IL is there employed? The direct cause of
divorce is some one of the causes
named in Section 90, Civil Code, as
violations of the duties or obligations
growing out of the status of
matrimony. But that status flows from the
contract OF MARRIAGES. result of it-and
in every action for divorce the marriage
contract must be alleged and proved as
iurisdictional prerequisite or the action
fails. 1t would certainly seem that in this
mere general sense any of the wrongs
enumerated in Section 80, Civil Code, which
might be pleaded by the defendant in an
action for divorce as grounds for afirma-
tive, relief would, within the very compre-
hensive Language of Section 442, Code Civil
Procedure, constitute matter relating to
or depending upon the transaction upon
which the action is brought"
OF course where a defendant does not
seek affirmative relief he may plead any of
those causes in bar of the plaintiff s action,
and when SO pleaded they constitute re.
criminatory matter only, as provided in
Section I'D, Civil Code 1t would certainly
lead to much confusion and multiplicity of
litigation to hold that in any instance
where the defendant has cause for divorce
against the plaintiff it must be pleaded in
q separate action. In that event it would
almost invariably arise that suits with like
objects would be pending between the
parties at the same time, since the defend
ant would not be required to await the de-
termination of the plaintiff s suit before
beginning one on his part This would
necessarily lead to double application
Tor allmony, costs and counsel fees, since
the wife would be as much entitled to that
right in one case IS in the other Then,
too, the trials would in most cases result in
having to go over much if not entirely the
same ground in both cases, since each party
doubtless would plead his cause of divorce
as criminative and defensive matter in his
answer to the action of his adversary Take
the case at bar as an instance the plaintiffs
cause IS extreme cruelty covering certain
period OF time. The affirmative matter in
defendants cross-complaint upon which
she asks divorce from plaintiff is likewise
extreme cruelty, covering substantially the
same period of time. Now if this matter
cannot be pleaded in a cross action the
defendant would of course plead il recrim-
lnatlvely in this action, and will then
doubtless at once commence an action on
her own behalf against plaintiff, in which
she would ask for divorce upon the same
identical ground
do not think the Legislature contem-
plated or intended any such result. Nor DO
think that the various provisions of the
two codes upon the subject taken together
bear the construction contended for. Ger
tainly l DO not feel authorized at this time
to take that departure. The demurrer will
be overruled. w. c. VAN FLEET,
JDdUe