Garrado v. Collins

Citation288 P.2d 620,136 Cal.App.2d 323
CourtCalifornia Court of Appeals
Decision Date17 October 1955
PartiesRoy Lee GARRADO, Plaintiff and Respondent, v. Pauline COLLINS, individually and as administratrix of the Estate of Estella Mae Garrado, deceased, and Wilburn Adams, Defendants and Appellants. Civ. 21135.

David A. Fall & Kenneth W. Gale, San Pedro, for appellants.

MacBeth & Ford, Los Angeles, for respondent.

ASHBURN, Justice pro tem.

Defendants Pauline Collins and Wilburn Adams appeal from a declaratory judgment in favor of plaintiff Roy Lee Garrado, who in turn moves to dismiss the appeal upon the ground that appellants are not aggrieved by the judgment. We do not reach a decision upon the merits of appellants' contentions because it appears that the motion to dismiss is well taken.

Pauline Collins is administratrix of the estate of Estella Mae Garrado, deceased. She is sued individually and as such administratrix. She and her co-defendant are children of decedent and one Paul Adams to whom decedent was married prior to January 1, 1931. The action involves certain real property on Antwerp Avenue in the City of Los Angeles which the court found to be decedent's separate property as to a two-thirds interest therein. This interest was adjudged to belong to plaintiff and the two individual defendants in equal shares. Defendants' appeal challenges the holding that plaintiff is entitled to an interest in said separate property of decedent, this because he was her putative husband only.

Plaintiff's complaint alleges that he and decedent, Estella Mae Garrado (also known as Estella Mae Adams), were married on January 1, 1931; that she died intestate on January 11, 1953 in Los Angeles; that during the intervening 22 years, they lived together as man and wife openly, notoriously and in complete good faith. Facts are also alleged which if true would establish that the Antwerp Avenue realty was community property in its entirety. Plaintiff also alleged that the controversy is this: 'Plaintiff, on the basis of the facts set forth above, contends that all of said estate was community property, hence goes to him under Probate Code, § 201. Defendants contend that plaintiff's marriage to Estella is void because she was then married to some other person or persons unknown to plaintiff, and that said property is not community property; hence plaintiff should inherit either nothing or one-third of Estella's estate.' He prayed that the court declare his rights in the property. Nowhere else in the complaint was any reference made, directly or indirectly, to a former marriage of Estella, or to his own marriage with her being void, or his own status being that of a putative husband. Defendants' answer, after making numerous denials, admitted by silence the quoted averment as to the existing controversy and added a paragraph XI reading as follows: 'That these answering defendants affirmatively allege that a long time prior to the 1st day of January, 1931, Estella Mae Adams was married to Paul Adams and that said marriage was never terminated by a decree of any court, and that the said Paul Adams is still living and resides at Omaha, Nebraska.' Defendants prayed that it be adjudged that plaintiff is not the surviving spouse of decedent, that he has no interest in any of her estate, and that they have other and general relief.

The trial court found that defendants are the children of a marriage between Estella and Paul Adams which occurred prior to January 1, 1931; that plaintiff married her on that date and that the marriage to Adams had not then been dissolved by death or legal proceedings; that Estella died intestate on January 11, 1953 in Los Angeles County and that she and plaintiff at all times after their marriage on January 1, 1931 had lived together as man and wife openly, notoriously and in good faith. It was further found that a one-third interest in the Antwerp Avenue...

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6 cases
  • Estate of Leslie
    • United States
    • United States State Supreme Court (California)
    • 8 Noviembre 1984
    ...the right of a surviving putative spouse to an intestate share of the decedent's separate property. Similarly in Garrado v. Collins (1955) 136 Cal.App.2d 323, 288 P.2d 620, the trial court awarded the putative husband one-third of the decedent's separate property. The decedent's two childre......
  • International Ass'n of Fire Fighters, Local No. 1319, AFL-CIO v. City of Palo Alto
    • United States
    • California Court of Appeals
    • 4 Marzo 1963
    ...v. Harshman, 80 Cal.App.2d 422, 431, 182 P.2d 222; Braverman v. Rosenthal, 102 Cal.App.2d 30, 32, 226 P.2d 617; Garrado v. Collins, 136 Cal.App.2d 323, 325, 288 P.2d 620.) Was the Order for the Issuance of the Peremptory Writ A writ of mandate will issue 'to compel the performance of an act......
  • Muller v. Muller
    • United States
    • California Court of Appeals
    • 19 Noviembre 1962
    ...pleadings, under the doctrine of 'conclusiveness of pleadings.' (Brown v. Aguilar, 202 Cal. 143, 149, 259 P. 735; Garrado v. Collins, 136 Cal.App.2d 323, 325, 288 P.2d 620; 2 Witkin, California Procedure, p. It is equally clear that appellant has no standing to set aside and vacate the judg......
  • Niles v. City of San Rafael
    • United States
    • California Court of Appeals
    • 2 Octubre 1974
    ...173, 465 P.2d 61.) A party who is not aggrieved by an order or judgment has no standing to attack it on appeal. (Garrado v. Collins (1955) 136 Cal.App.2d 323, 326, 288 P.2d 620.) Since the amount of attorneys' fees does not affect appellants' interest, they cannot contest the amount on appe......
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