Bohnert v. Bohnert

Citations

• 95 Cal. 444
• 30 P. 590
• 1892 Cal. LEXIS 845

Syllabus

<p>New-trial Statement — Specifications — Review upon Appeal. — Where there is no specification of error in a statement on motion for new trial, errors alleged by the appellant to have been committed by the court during the trial will not be considered by the appellate court.</p> <p>Divorce — Adultery — Plea of Condonation — Question of Fact — Conclusiveness of Finding. — In an action for divorce upon the ground of adultery, where the defendant, after denying the charge of adultery, alleged a condonation by the plaintiff, and his cohabitation with her after the bringing of the action; and the defendant testified that after the conmencement of the action she went to a cottage with him at his request, where they undressed and went to bed together, and that they staid there most of the afternoon and had sexual intercourse; and the plaintiff testified that he did not have sexual intercourse with her, as stated by her, nor at any time after the commencement of the action, but did not say whether he had undressed and occupied the bed with her in the cottage, — a finding by the court against the plea of condonation is conclusive. The question of the plaintiff’s credibility, and the probability of his statement in view of his failure to deny that he undressed and went to bed with the defendant, as stated by her, are matters for the determination of the trial court.</p> <p>Id. — Restoration to Marital Rights — Act of Sexual Intercourse. — The requirement of a “restoration of the offending party to all marital rights,” under section 116 of the Civil Code, in order to constitute con-donation, is not proved by evidence of sexual intercourse alone; and the fact that a wife charged with adultery went to a cottage with her husband at his request, and that they went to bed and had sexual intercourse, does not necessarily show forgiveness or intention on his part to take her back to his home and restore her to marital rights.</p>