232 P. 154 | Cal. Ct. App. | 1924
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *662 This is an application for a writ of mandamus directing the trial court to enter a final decree of divorce. An understanding of the application requires a consideration of the following facts:
Prior to June 7, 1919, George Edward Bennett and Susie H. Bennett were husband and wife. On that day the wife commenced an action for divorce. The petition does not set forth the issues made by the pleadings, but on June 1, 1920, the trial court entered a decree of divorce. Nothing to the contrary appearing, we must presume that the issues disposed of in that decree were properly before the court. So assuming, it appears that there were presented to the trial court issues involving all of the property rights of the parties and that the trial court disposed of the same.
Paragraphs II to VI are as follows:
"II. And it is further ordered, adjudged and decreed that said plaintiff be and she is hereby further awarded the sum of Two Hundred and Twenty-five ($225.00) Dollars per month for the care, support and maintenance of herself and said minor child, which said sum said defendant is hereby ordered and directed to pay to said plaintiff monthly on the first day of each and every month following the entry of this decree and until the further order of this Court;
"III. And it is further ordered, adjudged and decreed that said defendant be and he is hereby enjoined, restrained and prohibited, until the further order of this court, from conveying, transferring or otherwise disposing of or putting out of his possession or from creating any lien upon any *663 and all of the community property of plaintiff and defendant which is hereinafter particularly described;
"IV. And it is further ordered, adjudged and decreed that a lien is hereby created upon that certain real property in Ross Valley, County of Marin, State of California, which was formerly occupied by plaintiff and defendant as their home, in favor of plaintiff and against said property, as security for the payment to plaintiff of the sums of money hereinabove set forth at the times and in the manner herein prescribed, and that upon the death of defendant, said home property, in this paragraph referred to, be and become the separate property of plaintiff;
"V. It is further ordered, adjudged and decreed that subject to the provisions of this decree the community property of plaintiff and defendant, which is hereinafter described, be and the same is hereby awarded and set apart to the defendant. Said community property is particularly described as follows:
"A certain improved parcel of real property in the Town of Yolanda, County of Marin, State of California.
"Twenty-eight hundred and eighty-five (2,885) shares of the capital stock of the Pacific Stevedoring and Ballasting Company, a corporation organized under the laws of the State of California.
"Fifteen Hundred (1,500) shares of the capital stock of the Western Equipment Company, a corporation organized under the laws of the state of California.
"VI. And it is further ordered, adjudged and decreed that that certain real property in Ross Valley, County of Marin, State of California, formerly occupied by plaintiff and defendant as their home, be and the same is hereby awarded to defendant for the term of his natural life, with remainder after his death to the plaintiff, subject, however, to the lien hereinabove created in favor of plaintiff as security for the payment of the sums in this decree particularly provided for; and that upon the death of said defendant that said real property in this paragraph specified become the absolute property of plaintiff."
That interlocutory decree has not been vacated, annulled, or set aside and no final decree of divorce has ever been entered in said action. *664
On November 12, 1923, the husband died and thereafter the petitioners offered his will for probate and the will was admitted to probate and petitioners were appointed executors thereof. Later they appeared in the divorce action and made a motion that a final decree be entered. The motion was denied and the petitioners then applied to this court for a writ of mandate to compel the entry of a final decree. [1] That writ should not issue except "to compel the performance of an act which the law specially enjoins, as a duty resulting from an office," etc. (Code Civ. Proc., sec.
[5] As to all matters contained in the interlocutory decree every attack can be made that can be made on a final decree in any other kind of a suit. (Civ. Code, sec. 131) But each and every such attack must be made within the time prescribed by the statute. (Suttman v. Superior Court,
Remley v. Remley,
[9] When the interlocutory decree is silent as to property rights and deals solely with the status of the parties, and when no final decree is entered before the death of one of the spouses, the interlocutory decree becomes functus officio.
(Gloyd v. Superior Court,
We reach this conclusion with less reluctance when we consider the practice that has obtained in this state. Since 1903 we have had the law authorizing interlocutory decrees. During all of the intervening years the general practice was to draw an interlocutory decree, in all respects (except as to the status of the parties) as we formerly drew a final decree. During that same period it was the general practice to use printed blanks for framing final decrees, and such final decrees were silent as to all subjects concerning property rights. It is claimed that interlocutory decrees, no matter how worded, should be held as merely interlocutory as to property rights and not conclusive until adopted and *667
inserted in a final decree. If so, it must follow that, in the vast majority of cases that have heretofore been decided, the property rights of those litigants have not been disposed of because the final decrees were silent on the subject and that such parties are tenants in common. (Brown v. Brown, supra.) Every principle involved in the rule of stare decisis
constrains us not to make such a ruling unless compelled to do so. (Sacramento Bank v. Alcon,
The rule that the interlocutory decree becomes final after the time to appeal has expired, is general. It is a general rule applicable to interlocutory decrees in divorce actions and to decrees in actions other than divorce actions. Ordinary illustrations are injunction proceedings. In those actions provision is also made for interlocutory decrees after a hearing on the merits and for an appeal from such decree. The legal value of such decrees has been fully inquired into and adjudicated. (23 Cyc. 1233, note 70; Gallaher v. City ofMoundsville,
In the case of Gallaher v. City of Moundsville, supra, the plaintiffs commenced an action and took out an injunction to restrain the issuance and sale of certain bonds. Thereafter, on the second day of May, 1890, the injunction was dissolved but the bill was not dismissed. There was no appeal from the order of dissolution and the same stands in full force. Thereafter the same plaintiff, suing in behalf of himself and other taxpayers and owners of property in the city, commenced an action to restrain the collection of taxes to pay the interest on the bonds and took out a temporary injunction. The defendants moved to dissolve the injunction and pleaded as resjudicata the order first mentioned. The trial court denied the motion to dissolve and the defendants appealed. The court made an exhaustive study of the facts and the principles applicable as presented by the *668
record, and held that the plea of res judicata was well founded. Among other things the court said: "The same facts were stated in both bills. There was no issue on them. It was a decision on the law of the case on demurrer and motion to dissolve. The pith and point of the litigation was inevitably decided, for without it the order of dissolution could not have been made. The same facts sustained the claim in both bills." To the same effect are: McCourtney v. Fortune,
In view of what has been said above, the effect of the prayer of the petition before us is that the trial court be directed to enter a final decree adopting the interlocutory decree which has already become conclusive. To do so is to aid nobody and to injure nobody. By appropriate proceedings in the probate court the rights of the petitioners can be fully protected as to the properties belonging to the estate of the deceased husband, and if any erroneous rulings are made the same can be corrected on appeal; but it will benefit no one for this court to perform the idle act of causing one conclusive decree to be merged in another conclusive decree.
The petition is denied.
Nourse, J., and Langdon, P. J., concurred. *669