Du Bois v. Du Bois

• Decision Date: 17 May 1956
• Citation: 297 P.2d 76,141 Cal.App.2d 626
• Court: California Court of Appeals Court of Appeals
• Parties: Beverly Jean DU BOIS, Plaintiff and Respondent, v. John Jay DU BOIS and Jennie V. Starr, Defendants, Ella M. Shaw, as Administratrix with the will annexed of Jennie V. Starr, Deceased, substituted in the place and stead of Jennie V. Starr, Appellant. Civ. 8743.

Page 76

297 P.2d 76

141 Cal.App.2d 626

Beverly Jean DU BOIS, Plaintiff and Respondent, v. John Jay DU BOIS and Jennie V. Starr, Defendants Ella M. Shaw, as Administratrix with the will annexed of Jennie V. Starr, Deceased, substituted in the place and stead of Jennie V. Starr, Appellant.

Civ. 8743.

District Court of Appeal, Third District, California.

May 17, 1956.

Rehearing Denied June 13, 1956.

Hearing Denied July 11, 1956.

Sutter, Elledge & Carter, Modesto, for appellant Du Bois.

Cook & Gleason, Turlock, for appellant Starr.

Philander Brooks Beadle and Morton L. Silvers, San Francisco, for respondent.

VAN DYKE, Presiding Justice.

This action was begun as a divorce action brought by Beverly Jean DuBois, respondent here, against her husband John. The complaint filed charged cruelty as ground for divorce, sought custody of the minor children of the parties, a distribution of the community property and provisions for alimony and child support. The cause came on for trial on May 28, 1953. During the trial proceedings that day certain matters developed in the testimony concerning alleged claims made by Jennie V. Starr to property of the marital community, and the matter was continued to afford opportunity to join Mrs. Starr as a third party. It appeared that on May 20th, after the cause was at issue but before the first day of trial, an action had been begun by Mrs. Starr against John wherein the complaint sought judgment against him based upon allegations that promissory notes, aggregating in principal sum $31,500, had been executed in favor of, and were held by, Mrs. Starr, and were due and unpaid. The trial court made an order authorizing the joinder of Mrs. Starr in the case, and on July 1st, following, an amended complaint was filed, making her a party. Therein it was alleged that the action she had brought against John had resulted in a default judgment of something over $40,000 and that execution had been issued thereon. It was further alleged, however, that on June 13th Mrs. Starr had assigned the judgment to W. Coburn and Jeremy C. Cook by a 'purported assignment.' The cause against Mrs. Starr was stated as follows: There were allegations that Beverly and John were possessed of community property, the full extent of which Beverly did not know; that included therein was the family home, a house and lot in Turlock; that John had been employed since March of 1946 by Mrs. Starr as manager of her nursery in Turlock; that between November 1, 1946 and June 1, 1949, he had executed nine unsecured promissory notes to Mrs. Starr aggregating $31,500 in principal amounts; that there was no consideration for any of said nine notes and that the same were not obligations of John. It was alleged that the attorney representing Mrs. Starr in said action she brought against John was W. Coburn Cook and that he was an associate and partner of H. E. Gleason, who was the attorney for John. It was alleged also that the action had been fraudulently and collusively conceived and maintained for the purpose of depriving Beverly of her just share in the community property of the parties. When trial of the divorce action was resumed after Mrs. Starr had answered the pleading against her, testimony was taken concerning the community property of the parties, the claims of Mrs. Starr thereto, the good faith of the suit on the notes, and related matters. A judgment was rendered affecting the interests of Mrs. Starr and deciding the issues raised against her. Also an interlocutory decree of divorce was granted to Beverly, she was given custody of the children and granted alimony and child support; the community property was apportioned. John appealed from the judgment against him, but his appeal has been dismissed for want of prosecution thereof. Mrs. Starr appealed. While the appeal was pending she died and there has been substituted her personal...