Pereira v. Pereira

Since the filing of the opinion in this case, the plaintiff has asked that, instead of remanding the case for a new trial of the issues as to the property, the judgment be modified in regard thereto, and has filed a written consent that the defendant be allowed, as part of his separate estate, out of the cash on hand, interest at the rate of seven per cent on the $15,500 found to be the capital invested in his business. This removes the objection to directing a modification of the judgment. The defendant introduced no evidence to show that the capital invested was entitled to a greater return than legal interest, and in the absence of such evidence, the burden of proof being upon him, that would be the utmost he could claim. The wife would have been entitled to an opportunity to prove, if she could, that it earned a smaller proportion of the profits than legal interest, and, she being the respondent, it was for that reason considered necessary to order a new trial for that purpose. Her consent aforesaid avoids this necessity and leaves the case in such condition that a modification of the judgment will end the litigation with justice to both parties. (Fox v.Hale Norcross S. Mfg. Co., 122 Cal. 221, [54 P. 731].)

Interest at seven per cent on the $15,500 from April 19, 1900, the date of the marriage, to November 3, 1905, the time of the trial, amounts to $6012.70. Deducting this from $12,139.03, found to be the cash on hand at the time of the trial, leaves $6126.33, as the part of the cash belonging to the community. The plaintiff's three fifths of this is $3675.86 and the defendant's two fifths is $2450.47.

It is ordered that the judgment be modified by changing the respective statements of the shares of each in the cash on hand therein, so that the part relating to the plaintiff's share shall read as follows: —

"2nd. The sum of three thousand six hundred and seventy-five and 86-100 dollars ($3675.86), in cash, being three fifths of the sum of $6126.33 in cash found by the supreme court to be community property of the plaintiff and defendant; and that no interest in defendant's separate property be awarded to plaintiff."

And so that the part relating to the defendant's share shall read as follows: —

"2nd. The sum of two thousand four hundred and fifty and 47-100 dollars ($2450.47), in cash, being two fifths of the sum found to be community property as aforesaid."

And that as so modified the judgment stand affirmed, the plaintiff to recover all costs.