Monroe v. Superior Court in and for Los Angeles County

• Citation: 218 P.2d 136,97 Cal.App.2d 470
• Parties: . Civ. 17612. District Court of Appeal, Second District, Division 1, California
• Decision Date: 12 May 1950
• Court: California Court of Appeals Court of Appeals

Page 136

218 P.2d 136

97 Cal.App.2d 470

MONROE v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY.

Civ. 17612.

District Court of Appeal, Second District, Division 1, California.

May 12, 1950.

Robert G. Blanchard, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent.

Irvin C. Evans and Paul J. Otto, Los Angeles, for John Edward Monroe (real party in interest).

DORAN, Justice.

According to the petition, an action for divorce was filed on August 24, 1949 by the petitioner, Nelta Marie Monroe, against John Edward Monroe. In the amended complaint the husband was charged with adultery committed with eleven women; extreme cruelty was also alleged in that the husband 'associated with women other than his wife'. These women were not named as corespondents in the divorce action. Both charges were denied in the husband's answer.

Thereafter, the wife, petitioner herein, commenced the taking of a deposition of the husband as the adverse party, pursuant to Sections 2031 and 2055 of the Code of Civil Procedure. During the course of the deposition John Edward Monroe testified that he was acquainted with the women named in the complaint, and thereafter, upon advice of counsel, refused to answer questions relating to the following matters: 'Where certain of said women lived at the time of his meeting with them', and where such women lived at present; 'When was the last time he saw certain of them; and * * *. What were the circumstances surrounding his meetings with certain of them'. The husband further refused to answer an inquiry as to the last time he went out with any one other than his wife.

Objections to the above questions were made on the grounds that the same were incompetent, irrelevant and immaterial and outside the issues of the complaint; that no foundation had been laid, and that questions were highly prejudicial to the defendant's interests. Upon the hearing of an order to show cause, the Superior Court sustained the objections and refused to require defendant to answer the inquiries.

The petition for writ of mandate avers that 'By reason of the foregoing orders * * * petitioner has been prevented from obtaining * * * answers to questions which are legal and pertinent to the matter at issue * * * (and) By reason of respondent's action and its failure to perform its judicial duty * * * petitioner has been deprived of her lawful opportunity to complete the said deposition and will * * * be required to proceed to trial without the benefits of said deposition * * * and without any means of obtaining the information necessary to prepare her case'.

Respondent's points and authorities present the proposition that the testimony in question 'was inadmissible because the provisions of Section 1019, C.C.P., had not been complied with'. That section provides that 'When in an action for divorce adultery is charged * * * and the person with whom such adultery is alleged to have been committed * * * is named in any of the pleadings, a copy of such pleadings must be personally served on such named person'.

In Klemmer v. Klemmer, 42 Cal.App. 618, 187 P. 85, the court held that where Section 1019 had not been complied with it was not error to exclude a deposition offered to prove the adultery. The petitioner's argument that, because the Supreme Court in denying a hearing in the Klemmer case, 'expressly withheld approval of this portion of the opinion, thereby plainly implying a serious doubt as to the soundness of the views...