Sheridan v. Sheridan

Opinion — Temple

TEMPLE, J.

This is an appeal from a judgment of divorce, without a bill of exceptions. The defendant did not appear, by demurrer or answer, and the only point made on the appeal is, that the complaint does not state a cause of action. Appellant, in substance, contends that the complaint only contains the averments, that on the eighth day of March, 1898, defendant voluntarily separated himself from plaintiff without any fault on the part of plaintiff, with intent to desert her, and" did desert, and has continued since, and still does continue, to desert her.

It is said that section 95 of the Civil Code gives no . definition of desertion, but the following sections of the code, giving instances of desertion, constitute the real definition. But, while section 95 furnishes a very imperfect explanation in itself, taken in connection with the succeeding sections its meaning is obvious enough, and besides, the word “ separation,” when used in reference to husband and wife, has a well-established popular meaning. Applying that meaning here, as we must, the section is clear enough. When one is told that certain married persons have separated, he is at no loss for the meaning. And besides, contracts between husband and wife to “separate” and live apart are authorized, and not altogether unknown among us. So construed, the complaint charges that the defendant left plaintiff, intending no longer to perform his duty to her as her husband, but to sever the matrimonial relation so far as he was able, and that he had ever since continued his desertion. It charges him with having abandoned her with a fixed determination not to perform his matrimonial obligations.

This is, under the statute, to state a cause of divorce, and admitting that the facts are quite defectively stated, still the complaint is amply sufficient as against an attack of this character.

The judgment is affirmed.

McFarland, J., and Henshaw, J., concurred.