Sutcliffe

Appeal from an order denying a motion to vacate an interlocutory decree of divorce. The appellant commenced an action against the respondent for divorce. She alleged in her complaint that there was certain community property, both real and personal. The respondent filed an answer and a cross-complaint in the divorce action, and also instituted an action against the appellant for partition of the real property involved in the divorce action. The two actions came on together for trial through stipulation that evidence introduced in either case be deemed introduced in the other when relevant, competent and material to the issues involved. The respondent [plaintiff in the partition suit] introduced evidence and rested his case. The parties then, by their respective counsel in open court, stipulated to a dismissal of the partition suit and to an agreed division of the property described in the appellant’s complaint in the event the court granted a divorce. The respondent thereupon, also in open court, dismissed his answer to appellant’s divorce complaint and his cross-complaint filed in the action, and appellant dismissed her answer to the cross-complaint.

Evidence in support of the…