Pasquale v. Pasquale ( 1933 )

Margarita Carmela Pasquale, also known as Margarita Pasquale Del Torre, a minor, seven years of age, by her guardian adlitem, brings this action against the defendant for the purpose of having declared the existence between the defendant and herself of the relation of parent and child. The trial court, among other facts, found the defendant to be the father of the plaintiff, and Anna Mare, her guardian ad litem, to be her mother. It also found that since the birth of the minor the defendant has maintained and supported her in his home and has publicly acknowledged that the minor is his child. Pursuant to the findings, the court decreed the defendant to be the father of the plaintiff. Defendant has appealed on the judgment-roll alone.

[1] It is first contended by the appellant that the court had no jurisdiction of the cause, upon the theory that the mother is the only person who can bring an action against an alleged father to have established the relation of parent and child under section 231 of the Civil Code. That section provides: "An action may be brought for the purpose of having declared the existence or nonexistence between the parties of the relation of parent and child, by birth or adoption." (Italics ours.) The plain language of the section (note the italicized portion) is a sufficient answer to appellant's contention.

[2] It is next contended that the complaint does not state a cause of action, and that therefore the court was without jurisdiction to render a judgment. It cannot be questioned that the court had general jurisdiction of the parties to the cause and of the subject matter. The allegations of the complaint are somewhat scant, but they tender an issue as to the parentage of the plaintiff. No demurrer was interposed, and the defendant rested upon a general denial of the material allegations of the complaint. The cause was tried without any objection, and findings were made which are sufficient to support the judgment. There can be no question, from the record, that, throughout the entire proceeding and the trial, the issues were clearly understood by the parties and by the court. [3] The appeal being on the judgment-roll alone, it must be deemed that the findings and judgment are supported by the evidence. [4] Objections which might be raised by demurrer, but which were not presented in the court below, will not be considered in this court under an allegation of insufficiency of the complaint. (Burmester v. McNear, 42 Cal.App. 527 [183 P. 832], and cases cited. See, also, Belser v. Allman, 134 Cal. 399 [66 P. 492].)

We are of the view that the findings, conclusively deemed to be supported by the evidence, support the judgment and decree.

The judgment is affirmed.

Thompson, J., Curtis, J., Preston, J., Seawell, J., and Shenk, J., concurred.