De la Montanya v. De la Montanya

This is an action to obtain a divorce, in which the plaintiff also asked for the exclusive custody and control of two children, the issue of the marriage, and also for permanent alimony, as well as for a suitable allowance to enable her to prosecute this action.

*106 The defendant and the children, who were, of course, infants, were absent from the state when the suit was commenced, and have ever since remained absent. No personal service of the summons was had on the defendant, and he did not appear in the action. An attempt was made to serve the summons by publication.

It is claimed that the service was void because not made as required by the laws of this state, but I shall assume that such attempt at a constructive service was in accordance with the statute in every respect.

The defendant was born, and during his whole life had lived, in this state. He left the state on the twentieth day of November, 1893, with two children of plaintiff and defendant, proceeding to New York, and on the ninth day of December, 1893, left New York for Paris, France, where he arrived with his children on the nineteenth day of December. January 4, 1894, he made application to the ministry of…

dissenting.—I dissent. This is an action of divorce; and the present appeal is by defendant from an order of the superior court denying his motion to strike from the judgment rendered in favor of plaintiff all the provisions thereof relating to the custody of the minor children of the parties, and to support by way of alimony.

The facts of the case are these: The respondent and appellant were both born in, and are citizens of, the state of California; they were married, and their children were born in this state; and they have been continuously domiciled and resident here. The parties have two children, a girl named Lorraine, about five years old at the commencement of this action, and a boy named James Francis, about two years old at that time. This action was commenced December 20, 1893. About three weeks before that time appellant by force *120 and fraud took the child, James Francis, away from respondent; and on the following day took and carried away both óf said children, and kept them secreted from respondent, and has never since let her see them; and a short time before the commencement of this action he clandestinely left the state of California, and took said children…