Kirschner v. Dietrich

Citations

• 110 Cal. 502
• 42 P. 1064
• 1895 Cal. LEXIS 1088

Syllabus

<p>Divorce—Personal Action — Abatement — Death after Judgment— Jurisdiction.—An action to procure a judgment of divorce is a purely personal action, which cannot survive the death of either party, and where the plaintiff in such action dies subsequent to the entry of a judgment decreeing a divorce in her favor, the court is deprived of all power to review its action and determine her right to a divorce.</p> <p>Id._Publication of Summons — Application to Answer to Merits— Construction of Code.—The fact that the summons in the action for ■ divorce was served by publication, does not authorize the court to set aside a judgment of divorce, after the death of the plaintiff, to allow the defendant to answer to the merits of the action under section 473 of the Code of Civil Procedure, as that section has no application to a ease in which by the death of the plaintiff the action is abated, and all opportunity of controverting its merits has been removed.</p> <p>Id.—Question oe Property—Absence of Issue—Jurisdiction to Open Judgment—Review.—The court has no jurisdiction to open the judgment of divorce, for the determination of property rights between the plaintiff and the defendant, after the death of the plaintiff, where the complaint, as well as the judgment, is silent upon the subject of property; and, in such case, there being no issue upon that subject, the action cannot be revived, for the purpose of having the rights of property adjudicated.</p> <p>Id.—Effect of Decree—Community Property—Tenancy in Common— Independent Action. — In the absence of any issue as to property rights, or any reference thereto in the decree of divorce, the parties to the suit become tenants in common of the community property; and the death of the plaintiff after the entry of judgment does not impair the right of the defendant therein; but this right must be enforced in an independent action, in which all who may have an interest therein should be made parties, and it cannot be determined by