
    [Civ. No. 19386.
    Second Dist., Div. One.
    Mar. 23, 1953.]
    FRANK PUTMAN, Appellant, v. MARGUERITE SNELL PUTMAN, Respondent.
    Eleanor V. Jackson for Appellant.
    No appearance for Respondent.
   THE COURT.

This is an action for annulment of marriage. Defendant wife was served with summons, and defaulted.

At the trial the husband testified that he was potent, and he introduced medical testimony in corroboration thereof; that he tried to enter into marital relations with his wife but that she was incapable of it physically; and that prior to the marriage he asked her if she could be a wife in every sense of the word and she said she could.

No other testimony was heard by the trial court.

When the case was submitted the following colloquy took place between court and counsel:

“Miss Jackson. May I ask your Honor on what grounds the annulment is being denied?
“The Court. The proof is insufficient.
“Miss Jackson. What proof would Tour Honor like?
“The Court. I do not suggest what proof should be produced. I say this proof is insufficient and the annulment will be denied.”

Plaintiff appeals from the judgment.

Two causes of action were proved: physical incapacity to enter into the marital state on the part of the wife, and fraud on her part inducing plaintiff to enter into the marriage.

It is the settled rule in this state that it is error for the trial court to arbitrarily refuse to grant a decree of annulment when plaintiff’s testimony establishes grounds for annulment, and is not impeached, contradicted, or inherently improbable. (Shepard v. Shepard, 65 Cal.App. 310 [223 P. 1012]; Dobson v. Dobson, 86 Cal.App.2d 13 [193 P.2d 794].)

A death certificate has been filed in this case, showing the death of defendant after judgment in the superior court and before the submission of the case in this court.

Therefore, in order to protect plaintiff’s rights, whether claimed under the marriage, or otherwise, the judgment is reversed, with direction to enter judgment annulling the marriage nunc pro tunc as of the date of said judgment.  