This is an appeal by defendant from an order modifying a decree, given and made November 18, 1896, by which plaintiff obtained a divorce from defendant on the ground of her extreme cruelty, and awarding the custody of their three minor children to defendant.
On November 22, 1897, plaintiff filed a verified petition in the action, setting forth, among other facts, that defendant is residing with said three children at No. 321 Pacific street; that the children are of tender years, to wit, one a boy aged nine years, one a girl aged seven years, and one a girl aged five years; "that said house is a notoriously disreputable house and an unfit and improper place in which to rear said children; that said defendant has neglected and improperly treated said children and each of them"; that "for a long time past said defendant has notoriously and illicitly cohabited *Page 688 and now cohabits with one A. Donzelli, though not united to him in the bonds of matrimony . . . . . and that the said defendant is not a fit or proper person to have care, control, custody, and education of said children." The petition concludes with a prayer that the decree be modified so far as relates to said children, etc.
The petition was ordered to be heard on November 26, 1897, of which defendant had due notice, and came on to be heard on November 30th, plaintiff appearing in person and by counsel, and defendant appearing by counsel, Mr. F.D. Brandon. A continuance was asked by defendant's counsel on the certificate of her attending physician that defendant was "too sick and ill to be personally present in court." By consent of the parties the testimony of several witnesses was taken and the further hearing was postponed until December 3, 1897, at which time defendant's counsel again moved for a continuance on the same ground as before, and the court denied the motion. Counsel for defendant thereupon orally denied the allegations of the petition except as to the alleged illicit cohabitation of defendant with the said Donzelli, which he admitted to be true. The matter was submitted to the court for its decision, and on December 8, 1897, the court made its order modifying its decree in the divorce case and awarded the custody of the children to plaintiff. The order recites, among other things, that "all the allegations set forth in plaintiff's petition were proven to the satisfaction of the court."
Error is claimed: 1. In refusing to grant defendant's motion for a continuance; 2. For insufficiency of the evidence to support the order; and 3. In considering the admission of the counsel for defendant at the time it was made.
The first objection is grounded on the assumption that the certificate of the physician alone gave defendant an absolute right to a continuance. There was then no answer to the petition, no denial of its verified averments, no affidavit of defendant nor even an oral statement of her counsel that if permitted to be present defendant would testify to the un-truthfulness of the facts stated in the petition or to any facts whatever, and no showing that her presence was necessary as a witness or as adviser to her counsel in conducting *Page 689 the hearing. Under such circumstances it was not error to refuse the motion. (Paulucci v. Verity, 1 Kan. App. 121.)
The evidence was sufficient to support the order. It appeared by the testimony of witnesses who were in position to know the character of the house in which defendant was residing with her children that it was notoriously of the character alleged, and that its immediate surroundings were such as to warrant the court in causing the removal of the children and in determining that they should be taken from defendant and given to plaintiff's custody and care.
Counsel strenuously contend that it was error to receive and consider the admission of counsel as to the immoral conduct of his client; that the admission was in excess of the authority given him by section 283 of the Code of Civil Procedure, and several pages of the reply in brief are devoted to an argument the purpose of which is to show that the decision in Hearne v. DeYoung, 111 Cal. 377, "is highly technical and not warranted in reason or principle." Other cases giving construction to this section are Preston v. Hill, 50 Cal. 53,1 and Smith v. Whittier,95 Cal. 279, and these cases were referred to approvingly inReclamation Dist. v. Hamilton, 112 Cal. 603. We do not feel called upon to discuss the point in the present matter. The admission was made in open court at the hearing by the then attorney of defendant, who now, with associate counsel, seeks to take advantage of it by this appeal. Some testimony was given tending to show the truth of the fact admitted; no objection was made to the admission, and, of course, no ruling made or exception reserved thereto. Besides, the testimony was such as to clearly show that defendant was not injured by this admission of her counsel if it be conceded to be error.
The order should be affirmed.
Gray, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the order is affirmed. Harrison, J., Temple, J., Henshaw, J.
1 19 Am. Rep. 647. *Page 690