ODONE v. MARZOCCHI (1949)

Respondent has petitioned for a rehearing contending that the opinion of this Court erroneously states that the cross-complaint was not answered by respondent and must, therefore, be taken as true, and that this Court erred in holding that a wife may make a valid gift causa mortis of one-half of the community property. Respondent concedes that the record before this Court fails to disclose any denial of the allegations of the cross-complaint, but he asserts that appellant stipulated in the trial court that these allegations should be deemed denied, but that this stipulation was not made a part of the record on appeal. Since the statement in the opinion is in accord with the record on appeal before this Court, and the judgment of reversal rendered by this Court is general, setting the case at large in the trial court, if the case is to be retried the pleadings may be recast in such manner as to tender any issues which were available to the parties at the former trial.

There is no merit in the petitioner for rehearing and the same is, therefore, denied.

PER CURIAM.