55 Cal. 316, 6,728, Lowell v. Lowell

Docket Nº:6,728
Citation:55 Cal. 316
Opinion Judge:McKINSTRY, Judge
Party Name:LOWELL v. LOWELL
Attorney:A. C. Freeman, for Appellant (plaintiff). W. C. Van Fleet, W. F. George, and J. H. McKune, for Respondent(defendant).
Judge Panel:JUDGES: McKinstry, J. McKee, J., and Ross, J., concurred.
Case Date:April 01, 1880
Court:Supreme Court of California
 
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Page 316

55 Cal. 316

LOWELL

v.

LOWELL

No. 6,728

Supreme Court of California

April, 1880

         Department One

Page 317

         Appeal by the plaintiff and defendant, from a judgment in the Sixth District Court, County of Sacramento. Denson, J.

         The allegations in the complaint, with reference to the homestead, are as follows:

         " VI. That those parts of sections 6 and 7, etc.," * * * (describing the land) " are the homestead of plaintiff and defendant, and were dedicated as such by a declaration filed June 6th, 1873, by plaintiff, and recorded, etc.; * * * that plaintiff and defendant, at said last named date, were residing on said premises as their home."

         The answer " denies that the piece of real estate described in said complaint was dedicated by a homestead filed by plaintiff on the 6th of June, 1873, or that the same was ever dedicated by said plaintiff as a homestead."

         The Court finds (in finding 5) that the allegations of the complaint, with reference to the alleged homestead, are untrue; that the declaration was sufficient in form and substance, but was untrue in fact, in this, that plaintiff was not, at the time of making or filing the same, residing with defendant upon the land, but that she had left and abandoned her husband's home with the intention of making her home in Ireland.

         Theplaintiff, in answer to the cross-complaint, pleaded, as a bar, a judgment rendered in a prior action on the 25th day of September, 1877, in which the defendant had filed a cross-complaint, alleging abandonment by the plaintiff, commencing in May, 1873, and continued to the time of the filing of the cross-complaint, and in which the Court found that the plaintiff had not at any time deserted the defendant, and rendered judgment against him; and there was no finding as to this allegation.

         COUNSEL:

         A. C. Freeman, for Appellant (plaintiff).

         The fifth finding is against the admissions of the pleadings. The sixth allegation of the plaintiff's complaint was not denied by defendant, except as to matters which the Court finds to be true. The answer does not deny that the plaintiff and defendant were both residing on the premises when the homestead declaration was filed. The Court, on September 25th, 1877, had decided that the plaintiff never had at any time deserted the defendant. Yet, in finding fifth, it finds a desertion...

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