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District Court of Appeal, Third District, California.


Civ. 8191.

Decided: January 16, 1953

Stanley Arnold, Susanville, Louis Ferrari, Sylvester Andriano and Theodore Cicoletti, San Francisco, of counsel, for appellant. Arthur J. Anderson and Hardin Barry, Susanville, for respondent.

Appellant asks a rehearing on the ground that the recital of facts relied on by this Court to support its judgment is erroneous in material respects. Other grounds are stated which we think we need not specially refer to. Petitioner states that the most serious error was committed when this Court stated ‘that during all of that period she (respondent) believed herself to be his (Sancha's) common-law wife and that she was married to him.’ Says petitioner: ‘There is no evidence to support this statement. Neither respondent nor anyone on her behalf testified that she believed herself to be the wife of Sancha.’ On page 45 of the reporter's transcript the following questions were asked of respondent and the following answers given:

‘Q. I think you said this morning that Sancha wanted you to live with him as his wife? A. That's right.

‘Q. Over in Reno, was it? A. That's right.

‘Q. When was that? A. In 1926.

‘Q. From that time on what was the relationship between you and Sancha, the personal relationship? A. Man and wife.

‘Q. In every respect? A. That's right.

‘Q. What was your honest belief in regard to it? A. That we were really married.

‘Q. That continued to the date of his death? A. That's right.’

The petition continues with other assertions contrary to the record, but it is not necessary, we think, to do more than by the foregoing to illustrate the petitioner's carelessness in making these assertions. We have examined the record in the light of the charges made and think there is no foundation in the record for those charges.

The petition for rehearing is denied.


Hearing denied; SCHAUER, J., dissenting.