Miller v. Miller , 33 Cal. 353 ( 1867 )

By the Court, Shafter, J. :

This appeal is taken from a decree of divorce, made on the ground of adultery on the part of the wife. The decree does not state whether the divorce is from bed and board, or from the bonds of matrimony; and it is insisted that it is not only erroneous but void for that reason. Where a term has two meanings differing in the degree merely, it is to be understood in the larger sense wherever it occurs unless it appears to have been used in the narrower sense, by some form of direct expression, or from the context, the nature of the subject matter, or the res gestee. The term “ divorced,” as it occurs in the decree, imports a dissolution, in the largest sense, of the marriage relation between the parties. The term is not answered by a divorce in part, or to a limited intent only, but calls for a complete severance of the tie by which the parties were united.

The objection that the judgment is invalid for the reason that it does not appear that the defendant was not defaulted, is- not well taken. If the taking of a default was essential to the orderly conduct of the proceedings, we must presume that one was taken, inasmuch as the contrary does not appear.

The objection that the Court erred in awarding all the common property to the husband instead of apportioning it between the parties, is unsound. The twelfth section of the Act defining the fights of husband and wife (Acts, April 17th, 1850,) provides that “ when such decree of divorce is rendered on the ground of adultery, or extreme cruelty, the party found guilty thereof shall only be entitled to such portion of the common property as the Court granting the decree may in its discretion, from the facts of the case, deem just and allow.” By the very letter of the provision, the Court could, in the exercise of its discretion, have reduced the woman’s portion to an infinitesimal; and the difference between that and nothing is so slight as to fall under the rule of de minimis. But it appears from the findings that the common property was of small value; the care of the offspring of the marriage was awarded to the husband by the decree, and he is furthermore adjudged to pay the costs of the suit.

Judgment affirmed.

Mr. Chief Justice Currey did not express an opinion.