Niemann v. Deverich
| Decision Date | 07 August 1950 |
| Citation | 221 P.2d 178,98 Cal.App.2d 787 |
| Court | California Court of Appeals Court of Appeals |
| Parties | NIEMANN v. DEVERICH et al. Civ. 17648. |
John M. Dvorin, A. L. Abrahams and Henry B. Ely, all of Los Angeles, for appellant.
Francis B. Cobb, Los Angeles, for respondent.
Action on a promissory note dated November 1, 1946, for the sum of $6,950 signed by Marilyn Deverich and Albert Deverich. Defendant Marilyn filed an answer admitting her signature on the note and alleging as affirmative defenses that she was a minor at the time she signed the note and that after reaching her maturity she disaffirmed the obligation; that she received no consideration for the purported obligation; that the same was incomplete and was never executed or delivered by her to plaintiff; that prior to the date of the purported note a guardian of her person and estate had been appointed, guardianship proceedings had never been terminated, and the purported obligation was not executed or approved by her guardian, was not approved by the court and no claim thereon had been filed in the guardianship proceedings. She further alleged that at the time of her marriage to defendant Albert he had a wife living from whom he had not been legally divorced; that she was nineteen years of age when she married him and subsequently procured a decree of annulment of the marriage.
The evidence is not before us, the appeal having been taken on the judgment roll and a statement of the case which merely set forth the points plaintiff desired to present on the appeal.
The facts as recited in the findings are as follows: Defendant Marilyn was born on April 25, 1926, and her twenty-first birthday was the twenty-fifth day of April, 1947; on August 4, 1933, in the superior court of Los Angeles County, Alzoa Garland Scott was appointed guardian of her person and estate; the guardianship has never been terminated; no order of the court was obtained permitting the transaction with plaintiff or the execution of the promissory note which is the subject of the action.
On January 3, 1946, Albert Deverich filed a complaint for divorce in the district court of the state of Idaho against his then wife Marjorie May Deverich; on January 4 the defendant entered her appearance in the action, admitted service of summons and complaint, waived time to answer, notice of motion to set, notice of trial, and all further proceedings and consented that the action be heard as a default. On the same date the default of defendant Marjorie was entered, the action was tried, the court found that the plaintiff had been a resident of the state of Idaho for the statutory jurisdictional period immediately preceding the commencement of the action and adjudged that the marriage be dissolved.
On January 8, 1946, four days after the entry of the decree of divorce, defendants in the instant action Marilyn and Albert, entered into a marriage ceremony in Yuma, Arizona, and until February 28, 1947, lived together as man and wife and held themselves out to be such, which fact was known to and relied upon by plaintiff Niemann in accepting the note sued upon.
On April 8, 1947, defendant Marilyn, by her guardian ad litem, filed a complaint in the superior court of Ventura County for the annulment of her marriage, alleging the same was void for the reason that defendant Albert, ever since December 10, 1937, had had a wife living, and the purported decree of divorce obtained by him in Idaho was void. Defendant Albert consented that his default be entered and the court adjudged the marriage void from the beginning and annulled the same.
On April 25, 1947, defendant Marilyn delivered to plaintiff a written disaffirmance of the promissory note which is the subject of this action. The court found that Marilyn did not receive any consideration from plaintiff and was not required to return any consideration to him.
Prior to October, 1946, Marilyn signed the promissory note sued on herein. The date, name of payee and and amount of the note were blank when she signed it. The blanks were filled by Albert Deverich before the note was delivered to plaintiff.
The foregoing is a statement of facts as found by the trial court. Appellant does not contend that any finding is not sustained by the evidence.
As conclusions of law the court declared that the promissory note was signed by Marilyn in blank when she was under twenty-one years of age; she was entitled to give the notice of disaffirmance and having received no consideration she was not required to restore anything to plaintiff; at the time of the signing of the note she was under the legal disability of a guardianship proceeding pending in the superior court of Los Angeles County; her affairs were under the control of her guardian, and no consent of the court was obtained with respect to the note or to any of the transactions above mentioned.
Upon the foregoing findings of fact and conclusions of law the court adjudged that plaintiff take nothing as against defendant Marilyn Deverich. From this judgment plaintiff his appealed.
When the Ventura decree of annulment of the marriage of defendants Marilyn and Albert was offered in evidence plaintiff objected to the introduction of the proceedings on the grounds that by reason of the fact that he was not a party to the action the decree was not binding on him, citing sections 25 and 86 of the Civil Code; that the evidence of such proceedings was an impairment of the obligation of his contract, denied him due process of law, and denied full faith and credit to the Idaho decree of divorce, citing Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429, 1 A.L.R.2d 1355, and Coe v Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, 1 A.L.R.2d 1376. Plaintiff maintains that the Idaho decree of Albert from his former wife determined his marital status and since that decree purported to dissolve his marriage to Marjorie he was free to marry defendant Marilyn. The answer to this contention is that the Ventura decree annulled the marriage of Marilyn and Albert on the ground that the Idaho decree was void and that Albert was the lawful husband of Marjorie when the marriage ceremony between him and Marilyn was performed. The evidence offered (1) in the Idaho case, (2) in the Ventura trial, and (3) in the trial of the instant case is not before us and we are not called upon to review any one of those proceedings. We cannot go behind the Ventura decree since it has become final and it must be presumed that (1) the Ventura court heard evidence with...
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...by law upon a minor ‘for his protection against his own improvidence and the designs of others.’ ") (quoting Niemann v. Deverich , 98 Cal.App.2d 787, 793, 221 P.2d 178 (1950) ). The statute also "discourag[es] adults from contracting with minors." I.B. ex rel. Bohannon v. Facebook, Inc. , 8......
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I.B. v. Facebook, Inc.
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I.B. v. Facebook, Inc.
...judgment and experience and under certain conditions vests in them the right to disaffirm their contracts.'" (quoting Niemann v. Deverich, 98 Cal. App. 2d 787, 793 (1950))). Thus, in light of this statutory right, the minor Plaintiffs have standing to pursue their claims in federal court.II......
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Berg v. Traylor, B188554.
...by the disaffirmance of s, minor's contract might have been avoided by declining to enter into the contract." (Niemann v. Deverich (1950) 98 Cal.App.2d 787, 793, 221 P.2d 178; accord Burnand v. Irigoyen (1947) 30 Cal.2d 861, 866,186 P.2d 417.) Berg offers two reasons why the plain language ......