Opinion
[Syllabus Material] [Syllabus Material] Rehearing 22 Cal. 635 at 639.
Appeal from the Twelfth Judicial District.
The default of John G. Gimmy, one of the defendants, was duly entered by the Clerk, on the thirteenth day of May, 1861. Maria B. Gimmy, another of defendants, answered; and after a trial of the issues raised by her, a final decree against all the defendants was entered, November 15th, 1862. Notice of appeal from this decree was filed on behalf of both above-named defendants. November 18th, 1862.
The complaint averred that certain real estate (describing it by metes and bounds) was the common property of the plaintiff and her husband, John G. Gimmy, but did not aver any facts showing how the property came to be common property.
COUNSEL:
I. In a suit for the division of the common property the complaint should state facts, and sufficient facts to show that within the statute " defining the rights of husband and wife," passed April 17th, 1850, there is common property, and should state in what the common property consists, its nature, its situation, and its value, and in what manner it has been acquired. (Kashaw v. Kashaw , 3 Cal. 322.)
In an action on a statute, the complaint must state all the facts which are requisite to bring the case within the statute, and must positively allege not only the acts but the qualifications, if any are prescribed by the statute. (Brown v. Harmon, 21 Barb. 508.)
There is no averment in the complaint, or any statement of facts, or anything to show that the property was acquired by the parties subsequent to the passage of the Act of April 17th, 1850. The complaint should not only comprehend an averment to that effect, but also averments showing that the property was not acquired in such a manner that the said statute would impress it with the character of separate property--averments showing that it was not acquired by gift, bequest, devise, or descent, or before marriage. This defect is fatal. (Dye v. Dye , 11 Cal. 163.)
II. The homestead is not common property, and therefore is not the subject of division, or conveyance, in a suit for the division of the common property, or for a mere divorce. The Court has expressly decided that the homesteadis not common property. (In the matter of Buchanan's Estate , 1 Cal. 509; People v. Gerard , 6 Id. 73; Revalk and Wife v. Kraemer , 8 Id. 73; Taylor v. Hargous , 4 Id. 273; see Homestead Acts.)
John G. Gimmy, Appellant, in pro. per.
Porter & Sawyer, for Respondent.
JUDGES: Crocker, J. delivered the opinion of the Court. Norton, J. concurring.
OPINION
CROCKER, Judge
The decision in this case was rendered at the same time with that in the preceding case of Gimmy v. Gimmy, and a petition for rehearing, applicable to both cases, was filed by appellant, upon which the following decision was rendered by Crocker, J. Norton, J. concurring:
The appellant, in his petition for a rehearing in the above cases, relies with much confidence upon the alleged insufficiency of the averments in the complaints respecting the property which was the subject matter of the litigation. It is true that these averments are quite too general in their terms, there being a want of precision and certainty, and if demurrers had been filed to them on the ground that they were ambiguous and uncertain, they would undoubtedly have been sustained. But the appellant having failed to demur, he is deemed to have waived the same. (Practice Act, sec. 45.) They do not properly come within the latter clause of said section, because sufficient facts are stated, although they lack the requisite precision and certainty in the manner of their statement.
Rehearing Denied.