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District Court of Appeal, Second District, Division 2, California.


Civ. 16154.

Decided: July 14, 1948

Irving M. Walker, of Los Angeles, Lee J. Myers, of El Monte, and William Kay Crawford, of Los Angeles, for appellant. Martin, Hahn & Camusi, of Los Angeles, for respondent.

On the ground of the unsoundness of mind of Jefferson D. Caruthers, this action was brought by Martha McClure, his sister, to annul a marriage that had been solemnized between him and defendant. Coincidentally with the commencement of this action a proceeding was instituted for the appointment of a guardian of the person and estate of Mr. Caruthers on the ground of his alleged incompetency. An appeal from the order appointing a guardian has been dismissed. 82 Cal.App.2d 664, 186 P.2d 718. The appeal now before the court is from the judgment annulling the marriage.

Prior to the time when the two proceedings came on for trial the court made an order that they be consolidated for the purpose of trial. This and other rulings of the court are assigned as error by defendant.

1. Consolidation of the annulment and the guardianship proceedings. Defendant contends that the court erred in consolidating the two proceedings for the purpose of trial and asserts that there was no stipulation to that effect. There is a vast difference between a consolidation of two or more pending actions or proceedings relating to the same subject matter, e. g., actions to foreclose mechanics' liens (Code Civ.Proc., sec. 1184a), and a consolidation merely for the purpose of trial. Actions may be consolidated in the discretion of the court whenever a substantial right will not be prejudiced. (Code Civ.Proc., sec. 1048.) Consolidated actions may be disposed of by one set of findings and one judgment. A different situation exists when actions or proceedings are consolidated only for the purpose of trial. In such event the evidence adduced in one case is to be deemed applicable in the other insofar as it is material thereto, but separate findings and judgments must be made and entered in each case.

From an examination of the reporter's and clerk's transcripts it is manifest that the only order of consolidation made by the court of the two proceedings was for the purpose of trial. This was done in the interest of saving the time of the court and of avoiding a repetition of the evidence that would be offered in either proceeding that would be applicable to the other. After a colloquy in which all counsel and the court took part, Mr. Crawford being sole counsel for defendant at that time, the court said ‘Then that [the guardianship proceeding] will be consolidated with this [the annulment case], and we will try it all together.’ After further colloquy the court remarked that in the two proceedings ‘there will be the same doctors and the same witnesses * * * and stipulated the testimony as to one may apply to the testimony [in] the other. Is that agreeable, counsel?’ Mr. Crawford replied, ‘Yes, provided the date is satisfactory.’ Counsel for plaintiff at all times expressed their willingness to accede to the court's suggestion. Further statements were made by the court and counsel but the record does not disclose any objection to the trial of the two matters at the same time in order to avoid the iteration of medical and lay evidence in the trial of the second proceeding.

The order appearing in the minutes of the court recites that ‘the guardianship proceedings filed on behalf of Jefferson D. Caruthers may be consolidated with this matter for the purpose of hearing and hearing on guardianship, annulment and restraining order be had on September 10, 1946, at 9:30 A.M. * * * Cause is set for trial September 10, 1946, at 9:30 A.M. * * * Notice is waived.’

When the two proceedings came on for trial on September 10 Mr. Myers, who had become associated with Mr. Crawford as counsel, refused to stipulate to the trial of the two cases together. After the court referred to the proceedings had at the previous hearing Mr. Myers made a suggestion that in effect was the same as the court's order previously made, to wit, that after the annulment action had been heard the testimony of certain witnesses might be considered as having been introduced in the guardianship proceeding. The trial then proceeded. At its conclusion the court made and filed its decision and entered judgment in the annulment action and made separate findings and an order appointing a guardian in the incompetency proceedings.

The court did not err in its action and defendant was not prejudiced in any manner by such procedure since Mr. Caruthers' incompetency and unsoundness of mind constituted the real and only issue to be determined by the court. Mr. Crawford consented to the order and Mr. Myers' suggestion at the beginning of the trial amounted to an affirmance of that consent and a waiver of any further objection to the court's order. The evidence offered by both plaintiff and defendant as to the condition of Mr. Caruthers' mind was therefore properly applied to each proceeding.

2. Plaintiff's capacity to maintain the action. Defendant contends that Mrs. McClure did not have legal capacity to commence and maintain the action on behalf of Mr. Caruthers and for that reason the entire proceedings and the judgment are void. The want of legal capacity of a party to sue is one of the grounds of demurrer to a complaint (Code Civ.Proc., sec. 430), and since defendant did not raise the objection by either demurrer or answer it is deemed to have been waived. (Sec. 434.)

By defendant's allusion to an alleged oral demurrer made during one of the preliminary hearings prior to the trial she no doubt refers to an oral statement made by her counsel that he desired to make a special appearance ‘to resist any further action of this order at this time for the reason that there is absolutely no color of right for this plaintiff to be in court. * * * There is no capacity set forth.’ Neither this statement nor any purported oral demurrer need be noticed since an oral demurrer is unknown to procedure in this state. The only objections to a complaint that may be made orally are (1) that the court is without jurisdiction of the case and (2) that the complaint does not state facts sufficient to constitute a cause of action. (Code Civ.Proc., sec. 434.)

However, the contention that the right of plaintiff to maintain the action may be raised by a general demurrer for the reason that the complaint does not state a cause of action which she is permitted to prosecute invites a consideration of the question on its merits.

Plaintiff's right to maintain the action is found in sections 82 and 83 of the Civil Code. Section 82 provides that a marriage may be annulled if either party was of unsound mind at the time of the marriage, unless such party, after coming to reason, freely cohabits with the other as husband or wife. Section 83 provides that an action to obtain a decree of nullity of marriage on the ground of unsound mind of one of the parties must be commenced ‘by the party injured, or relative or guardian of the party of unsound mind, at any time before the death of either party.’ Such language places the relative on an equal footing with the guardian.

Although this provision permits an action to be prosecuted by a party to the marriage through his guardian, Mr. Caruthers was not a necessary party to the action. Mrs. McClure, as a relative, had power under the same provision to commence and prosecute it to judgment. Jones v. Alameda, 85 Cal.App. 607, 612, 259 P. 976. Since the subject of marriage is within the control of the legislature it may determine the conditions under which the marital status may be created and terminated. It is within its power to authorize a relative of a person who is unable to act for himself to act in his behalf without naming him as a party.

There is no authority for defendant's contention that since Mr. Caruthers is the party in interest he is an indispensable party to the action. A person expressly authorized by statute so to do may sue without joining the person for whose benefit the action is prosecuted. (Code Civ.Proc., sec. 369.) The universal rule is that when a right of action is statutory it is necessary to bring the action in the name of the party authorized by the statute to do so without regard to any question as to the real party in interest. Black Rock P. M. Dist. v. Summit W. & I. Co., 56 Cal.App.2d 513, 516, 517, 133 P.2d 58; Salmon v. Rathjens, 152 Cal. 290, 294, 92 P. 733.

The provisions of the Civil Code above referred to are not modified or limited by section 367 of the Code of Civil Procedure requiring that every action must be prosecuted in the name of the real party in interest, or by section 372 which provides that when an insane or incompetent person is a party he must appear by a general guardian or by a guardian ad litem. The power given by section 83 of the Civil Code to a relative to maintain such an action is independent of other statutory provisions relating to the maintenance of actions. Estate of Karau, 26 Cal.App.2d 606, 609, 80 P.2d 108, 109, cited by defendant, does not sustain her contention but on the contrary holds that ‘it was the legislative intent that the provisions of said sections 82 and 83 should be exclusive and hence controlling in the matter of annulment of marriage contracts [upon the ground of unsoundness of mind] regardless of the degree of the unsoundness of mind.’ Dunphy v. Dunphy, 161 Cal. 380, 119 P. 512, 38 L.R.A.,N.S., 818, Am.Cas.1913B, 1230, is also relied on by defendant. That action was commenced by one of the parties to the marriage for an annulment on the ground that at the time of the ceremony he was intoxicated and had no comprehension of what he was doing. Subsequently an amended complaint was filed in the name of the plaintiff by his guardian ad litem, alleging that at the time of the marriage he was and ever since had been of unsound mind. The court held, 161 Cal. page 389, 119 P. 516, that there was no error in appointing a guardian ad litem under sections 372 and 373 of the Code of Civil Procedure. It did not hold that such method of procedure is exclusive of the right of a relative to prosecute such an action by virtue of sections 82 and 83 of the Civil Code.

Section 196a of the Civil Code is analogous to section 83 in that it provides that a civil suit to enforce the obligations of a father to support an illegitimate child may be maintained by his mother or guardian. The child is not a necessary party. Pursuant to section 196a actions may be brought by and in the name of the mother of a minor illegitimate child on its behalf against the father. Fernandez v. Aburrea, 42 Cal.App. 131, 133, 183 P. 366; McLain v. Meadows, 44 Cal.App. 402, 404, 186 P. 411.

Other cases cited by defendant are equally inapplicable in such an action as this, in which the incompetent person is not, as contended by defendant, an indispensable party, Dixon v. Cardozo, 106 Cal. 506, 39 P. 857, was an action to foreclose a mortgage after the commencement of which the plaintiff became insane and a guardian of his person and estate was appointed. The guardian was substituted as plaintiff. Such substitution eliminated the original plaintiff as a party and made the guardian ad litem the sole plaintiff. The court held that such substitution was error and that the suit should have been prosecuted in the name of the plaintiff by his guardian. In Keane v. Penha, 76 Cal.App.2d 693, 173 P.2d 835, the action was brought against, not by or on behalf of, the minor, and his court held that an infant defendant must appear by his general guardian or by a guardian ad litem. Obviously neither of the cases cited has any application to the right of a person to maintain an action in his own name on behalf of a relative who is under legal disability where such right is expressly authorized by statute. Other decisions cited by defendant have been examined. They are not in point since they discuss (1) the disposition to be made of litigation when a necessary or indispensable party is not brought into the case and (2) the requisite allegations to be made when a person sues or is sued in a representative capacity. The case at bar is not within either category.

3. The sufficiency of the complaint. No objection was offered to the introduction of evidence on the ground that the complaint did not state facts sufficient to constitute a cause of action, and, as above noted, no demurrer to the complaint was filed. Although the first three points raised by defendant against the sufficiency of the complaint are waived by her failure to make timely objection, they will be briefly noted. The fourth point goes to the sufficiency of facts and may be raised by general demurrer.

(a) Objection that Mr. Caruthers was not a party to the action has already been disposed of adversely to defendant's contention.

(b) Objection that defendant was sued in her former name, Laura Alpha Donovan, and not in her married name, Caruthers, is of no moment. She was named in the complaint as Laura Alpha Donovan, also known as Laura Alpha Caruthers, and answered the complaint without remonstrance. No such objection having been made in the trial court, it cannot be raised on appeal. If she had suggested that she had been incorrectly named the court below could have ordered a correction. (Code Civ.Proc., sec. 473.)

(c) Objection to the allegations referring to defendant as the ‘alleged’ wife of Mr. Caruthers and to the ‘alleged’ marriage is without merit. Since plaintiff was seeking a decree voiding the marriage she was justified in using such language as was proper to indicate that she did not recognize the marriage as valid or defendant as the lawful wife of Mr. Caruthers.

(d) The only objection that merits attention is that the complaint is insufficient for the reason that it is not alleged in the language of section 82 of the Civil Code that Mr. Caruthers, at the time of the marriage, was of ‘unsound mind,’ the allegation being that he was wholly incompetent and continued to be incompetent at the time of the commencement of the action. The error was cured by evidence that was received without objection from defendant.

The record demonstrates that the cause was tried on the theory that the contested issue was the unsoundness of Mr. Caruthers' mind. There was evidence as to his incompetency. There was also ample positive evidence that he was, at the time of the marriage and continued to be at the time of the trial, of unsound mind. A medical witness was asked whether Mr. Caruthers' mind was ‘either sound or unsound.’ He answered: ‘It is unsound.’ He was also asked ‘would you say he was of unsound mind’ on or about August 1, the date of the marriage? The witness answered: ‘I think so.’ Another witness testified that ‘this condition of unsound mind’ was noticed first in 1942 or 1943. Another was asked whether Mr. Caruthers' mind was sound or unsound and he answered: ‘He was unsound.’ There was other evidence that he was ‘irrational’ and that he was ‘completely unbalanced.’ Another witness was asked ‘In your opinion is he insane?’ and the answer was, ‘Absolutely.’ His condition was described by witnesses as senile dementia, medically incompetent, mental enfeeblement.

All the foregoing evidence was received without objection that the complaint was insufficient. Twice objection was made that the proper foundation for the evidence had not been laid and this was the only challenge offered to any of the questions.

The introduction of the foregoing evidence without objection shows that the parties were not in disagreement during the trial as to the issue to be determined by the court. If there had been any formal defect in the complaint the pleading was cured by the evidence. The court permitted an amendment to conform to the proof alleging that Mr. Caruthers was of unsound mind and made a finding of fact that prior and subsequent to the purported marriage and at the time of the trial he ‘was of unsound mind’ and that by reason of such unsoundness of mind he was incapable of contracting the marriage.

The objection to the sufficiency of the complaint comes too late. Even though a complaint is deficient in some particular if the case is tried on the theory that it is sufficient and evidence is received without objection the unsuccessful party cannot maintain an objection at a later time to the sufficiency of the pleading. Asnon v. Foley, 105 Cal.App. 624, 628, 288 P. 792; Slaughter v. Goldberg, Bowen & Co., 26 Cal.App. 318, 328, 147 P. 90; Hirsch v. James S. Remick Co., 38 Cal.App. 764, 767, 177 P. 876; Guidera v. Lapiana, 52 Cal.App. 460, 463, 199 P. 557; Meer v. Cerati, 53 Cal.App. 497, 505, 200 P. 501; City of Redding v. Dozier, 56 Cal.App. 590, 593, 206 P. 465; Grimes v. Richfield Oil Co., 106 Cal.App. 416, 422, 289 P. 245. The Slaughter, Hirsch and Guidera cases were to recover damages for wrongful death. In such cases the existence of heirs is an element of the cause of action and in the absence of an allegation of that fact a cause of action is not stated. The complaints in the Slaughter and Hirsch cases omitted the allegations of the existence of heirs of the decedent, and in the Guidera case it was not alleged that the persons named were all the heirs left by decedent. In each case it was held that the introduction without objection of evidence that heirs survived the decedent and that those named in the evidence constituted all his heirs, cured the objection to the sufficiency of the complaint to which a general demurrer should have been sustained by reason of the omission of an allegation of fact specifically required by the statute.

4. Sufficiency of the evidence to sustain the judgment. Defendant refers to evidence given by medical and lay witnesses regarding Mr. Caruthers' incompetency, mental enfeeblement, and describing his condition as senile dementia, and contends that such evidence is insufficient to sustain the finding and judgment that at the time of the marriage he was of unsound mind. The finding is sustained by the evidence to which we have referred and by that which will be hereinafter recited, all of which is ignored in defendant's argument.

Defendant's criticism of the character of the evidence given on behalf of plaintiff and her comparison of it with that given by her witnesses should have been addressed to the trial court. It is not within the province of a court of review to compare or to evaluate conflicting evidence unless that introduced by one party is inherently improbable and unbelievable.

The evidence hereinbefore narrated and the testimony concerning the facts surrounding the marriage and the actions and statements of Mr. Caruthers, both before and after the ceremony, furnish ample support of the court's finding that he was of unsound mind and that he ‘did not have the mental capacity and understanding to understand the subject matter of the marriage contract, its nature and probable consequences and was incapable by reason of such unsoundness of mind of contracting said marriage and at the present time is and continues to manifest a state of mind which renders him and he is a person of unsound mind. That it is true and the court is of the firm conviction from the evidence and the preponderance thereof that Jefferson D. Carruthers was and is incapable of comprehending and understanding the contract of marriage, its nature and probable consequences, and that the said Jefferson D. Carruthers, subsequent to the said marriage, was incapable of freely cohabiting with the said Laura Alpha Donovan, also known as Laura Alpha Carruthers, in that during said period the said Jefferson D. Carruthers was of unsound mind. That at no time since the consummation of the said purported marriage has the said Jefferson D. Carruthers regained his soundness of mind nor will he do so.’

On the day of the marriage Mr. Caruthers and the defendant, accompanied by Mr. and Mrs. Gill in their automobile, went from Mr. Caruthers' home near El Monte to the branch office of the county clerk in Pasadena and obtained a marriage license. Prior to starting to Pasadena and during the trip no mention was made of the wedding that was shortly to be solemnized. The conversation related to scenes along the highway and to general topics of the day. After obtaining the license the parties went to a garage in El Monte owned by a justice of the peace and then proceeded with him to his home where he performed the ceremony, the justice of the peace and his wife being the only parties present other than those above mentioned. It was frequently necessary to prompt Mr. Caruthers with reference to his part in the proceeding. He apparently was ignorant of the fact that he was being married and interjected remarks concerning matters foreign to such a solemn occasion. At one time defendant told him to ‘quit your clowning.’

There was no wedding ring nor any of the usual accompaniments of a wedding. After the ceremony had been completed there was no conversation concerning the event. The justice of the peace testified that the parties remained in his home for about ten minutes and that during that time the conversation related principally to the raising of apples and to events that happened during Mr. Caruthers' early years.

About two days after the wedding relatives of Mr. Caruthers went to visit him, as had been their custom on Saturdays and Sundays, at which time defendant was absent from the premises. Mr. Caruthers made no mention of his having been married. Although he had sold 16 1/212 acres of his 17-acre farm a short time previously to Mr. and Mrs. Gill he said to his relatives during their visit, ‘I have had this place now for 40 years and I think I will keep it until I die. I am not going to sell it.’ His visitors did not know at that time that he had been married or that he had sold his property. One witness testified that during the conversation ‘he commenced to laugh and he said, ‘I had a funny thing happen to me.’ I said, ‘Let's hear it, Uncle Jeff, I have heard a lot of funny things on you so far.’ ‘Well,’ he said, ‘somebody came in here and wanted me to go up and stand up with them to get married.’ He said, ‘I don't know what the hell they wanted with me; I didn't know them, so anyway they came and helped me put on my clothes and hustled off to Long Beach and I stood up with them; she was a hell of a pretty girl, I didn't know what she was, what they wanted me to stand up for I don't know, but they came back and dumped me out and away they went and I haven't seen them since.’' His lack of understanding of the events that had occurred is indicated not only by his statement about the marriage but by his declaration that he had been taken to Long Beach which was several miles farther from his home than Pasadena and in a different direction. Since he had resided on his farm for 40 years it will be presumed that he was acquainted with his surroundings and that if he had been in his right mind he would have known whether he was taken to Long Beach or Pasadena.

A week later, during another visit of the relatives, some mention was made of the fact that Mr. Caruthers had only a few of the livestock which he had previously had on his farm. He was asked whether or not he had sold his horses and mules. He said ‘No, someone came up here and carted them down below here.’ Defendant who was present on this occasion said, ‘You sold them for $300 and gave the man a bill of sale for them.’ Mr. Caruthers replied ‘you are all wrong about that. I didn't sell any mules or stock.’ Defendant repeated that he had sold the animals and said to the visiting relatives, ‘Well, it doesn't make any difference. It is none of your business anyway. Jeff and I are married and I own this place.’ This was the first notice to the relatives of the marriage. When one of them asked Mr. Caruthers whether he was married he said, ‘No, honey, now don't worry, I am not married.’ When told that Laura, the defendant, said he had married her he replied: ‘Who is Laura, you mean that woman that drinks and smokes so much? * * * Oh, no, I wouldn't marry her.’

The sale of Mr. Caruthers' farm was made in June, slightly more than a month previous to the marriage. Defendant accompanied him to the bank for the purpose of opening an escrow and signing the necessary documents to complete the conveyance. During a visit of his relatives about a week after the occasion above mentioned they inquired whether he had sold his property. He answered that he would not do so. When one of them stated that it was rumored that he had sold it he answered, ‘Well, boy, if anybody would know about my selling surely I should know. When I tell you it has not been sold, it has not been sold.’ His lack of knowledge of the sale is further shown by the fact that after the conveyance had been made he dug post holes for fencing the property and continued to work on the land in the same manner as before.

There was additional evidence sustaining the allegation and the finding that Mr. Caruthers was of unsound mind at the date of the marriage and at the time of the trial but its recitation is unnecessary since the foregoing is sufficient. There was also evidence from defendant's witnesses that he knew he had been married to her. Since it is in conflict with the evidence offered by plaintiff and since the trial court has indicated by his finding of fact which witnesses he believed this court cannot disturb the finding.

5. Other alleged errors. Appellant assigns four other errors, any one of which, standing alone, she admits would not be a ground of reversal, but she contends that when taken together, in addition to the other points raised in her brief, show that she did not have a fair trial.

(a) Defendant's counsel, without notice to plaintiff or her counsel, procured from the presiding judge an order extending time for the filing of objections to the proposed findings of fact and conclusions of law. Two days later the trial judge, upon his own motion and without notice to defendant's counsel, vacated and set aside the order. The facts of the case and the mental and physical condition of Mr. Caruthers were not known to the presiding judge but were within the knowledge of the trial judge. The latter knew the necessity of avoiding delay in entering the judgment. The trial judge made an order reciting that he had previously instructed all counsel in the case that he desired the findings of fact and conclusions of law and any exceptions, objections or amendments thereto to be filed within the statutory period and without any extension of time, and that he would be in Los Angeles at a certain time for the purpose of disposing of the case. There was no error in vacating the order. Defendant was not prejudiced since (1) it does not appear what amendments she desired to submit nor that any amendments to the proposed findings would have been of any avail to her and (2) the findings signed by the trial judge are sustained by the evidence.

(b) Defendant alleges ‘abuse of discretion by the court in his lengthy examination of witnesses.’ She admits, as she must, that considerable latitude is allowed the trial court in the conduct of a trial and in performing his duty to ascertain the facts appertaining to the issues which he must determine. We have inspected the record and find that the court's examination of witnesses was for the purpose of ascertaining the condition of Mr. Caruthers' mind in order to determine what disposition should be made of both the incompetency and the annulment cases. Such a proceeding is an important and solemn matter and a finding that a person is incompetent or of unsound mind should not be made lightly, nor at all, unless the court is convinced that it is warranted by the facts. It was the court's duty to ascertain the mental condition of Mr. Caruthers and to that end he was justified in interrogating witnesses in order to bring out facts and opinions that were not covered to his satisfaction by the questions of counsel. The examination of the witnesses by the court was reasonable and proper.

(c) Defendant complains that the court criticized her because her counsel did not call Mr. Caruthers as a witness. Mr. Caruthers was in court during the entire trial. When the court expressed a desire to have him testify defendant's counsel objected to his being called while plaintiff's counsel not only did not object but expressly agreed to his testifying. The remarks of the court to which defendant takes exception were made during an argument as to whether Mr. Caruthers should be called as a witness and we find nothing objectionable in them.

(d) Defendant alleges that the court committed error in failing to rule promptly upon her motion to be relieved of the stipulation for consolidation of the two proceedings and to sever the cases for trial. We have already indicated that the consolidation of the cases for the purpose of trial was within the discretion of the court, was agreed to by defendant's counsel and was made in the interest of conserving time and of avoiding two trials of practically the same issue. The court had a right to give proper consideration to the motion and to take it under submission for that purpose. There was no error in failing to rule upon the motion immediately upon its presentation and there was no error in denying it at a subsequent point in the trial. Defendant was not prejudiced by the ruling since her counsel were well aware of the issues to be tried and of the fact that the same witnesses would testify and the same evidence would be given in both the annulment and the guardianship proceedings.

Judgment affirmed. The order denying defendant's motion for a new trial not being an appealable order, the appeal therefrom is dismissed.

WILSON. Justice.

MOORE, P. J., and McCOMB, J., concur.