Saunders v. Saunders , 173 Cal. App. 2d 557 ( 1959 )

NOURSE, J. pro tem.^*

By her complaint in this action plaintiff and appellant sought to have vacated and set aside a final and interlocutory decree of divorce granted to her husband upon the ground that at all times during the pendency of the action for divorce she was of unsound mind and therefore incapable of defending the action brought against her by her husband and that these facts were known to her husband and concealed from the court. The trial court found that plaintiff was not mentally incompetent or of unsound mind during the time in question and that the defendant did not conceal any facts from the court in the divorce action. It further found that plaintiff was not mentally incompetent at the time of signing the property agreement.

Plaintiff appeals from the judgment and assigns as the sole ground of error the insufficiency of the evidence to support the findings. We have carefully studied the record and while there was some conflict in the evidence as to plaintiff’s mental competency there was substantial evidence that she was at all times competent and this being so this court will not disturb the judgment of the trial court as it is the province of the trial court and not this court to pass on the credibility of the witnesses and to determine the weight and sufficiency of the evidence. (Appeal and Error, 4 Cal.Jur. 2d, § 606, and cases there cited.)

We may say here that in our opinion the preponderance of the evidence sustains the findings of the court.

The judgment is affirmed.

Fourt, Acting P. J., and Lillie, J., concurred.

Appellant’s motion to set aside the judgment was denied and, considering the motion as a petition for a rehearing, the petition for a rehearing was denied October 7, 1959.

* Assigned by Chairman of Judicial Council.