263 P. 347 | Cal. Ct. App. | 1928
It appears that some time prior to the filing of the petition herein petitioner was granted a decree of divorce from her husband, wherein she was awarded alimony; that several months thereafter, because of the fact that nothing had been paid by the husband on account of such alimony, he was cited for contempt of court. At the same time, but under a separate proceeding supplementary to execution, the husband was ordered to answer respecting his property. When the two matters came on for hearing, the judge then and there presiding required the wife to elect whether she would proceed by and through the citation for contempt of court, or by virtue of the proceeding supplementary to the execution of the judgment. Upon the declination and refusal of the wife to so elect, the court thereupon dismissed the proceeding supplementary to the execution and caused to be entered in its minutes an order of which the following is a part, to wit: *262
". . . The court gives plaintiff the right of election as to whether he elects to proceed upon the examination of judgment debtor or the order to show cause re contempt, the court holding that the two proceedings are inconsistent with each other. The counsel for plaintiff refused to elect between the two proceedings and the court then orders the proceeding in re examination of judgment debtor dismissed, to which plaintiff enters his exception. . . ."
By virtue of a writ of mandate petitioner seeks to have the proceeding supplementary to the execution restored to the calendar of the lower court, to the end that the husband may be required to answer regarding his property.
[1] The question first raised by respondents is as to whether, in an action for divorce where alimony is awarded the wife, under appropriate circumstances she is entitled to an order supplementary to the execution of the judgment. No authorities directly in point are cited. However, the provisions of the statutes would seem to be ample. Section 137 of the Civil Code gives the right to execution in satisfaction of an order of "alimony" during the pendency of an action for divorce; and section
[2] No attempt is made by respondents to justify the "inconsistency" between the alleged contempt of court and the proceeding supplementary to the execution, as suggested by the judge before whom the several matters were set for hearing. It is, however, urged by respondents that mandamus is not the appropriate remedy to correct the error, if any, made by the lower court.
Section
Section 963 of the Code of Civil Procedure, which specifies the several instances in which an appeal may be taken, among other things, contains a provision in effect that an appeal will lie "from any special order made after final judgment." In the case of Stensland v. Superior Court,
". . . Here it is suggested there is a plain, speedy and adequate remedy by appeal from the order overruling the motion for execution, but this remedy although plain is neither speedy nor adequate. The appeal, in the ordinary course, would not be decided for a long time, and pending the appeal there would be no security for the payment of the judgment. And, besides, nothing would necessarily result from an appeal beyond a reversal of the order, and this would merely confirm the right of the petitioner to execution — a right already complete. So that unless the judgment of reversal was accompanied by a mandatory direction to order the issuance of execution, the petitioner would find himself at the end of his appeal precisely where he is now — with a right to demand the issuance of the writ, but with no power to compel it. Considerations such as these *264
must have been the ground of decision in Garoutte v. Haley,
In the case of Sullivan v. Superior Court,
In the instant case, as in substance is pointed out in each of the cases to which reference has been had, an appeal from the order in question, if decided favorably to the appellant, would fail in providing an adequate remedy in that it would "merely confirm the right" of the appellant in the premises and leave her at the end of her appeal precisely where she is now — with the right to demand the issuance of the order supplementary to the execution of the judgment, but with no power to compel a hearing thereon.
So far as the proceeding supplementary to execution is concerned, let the peremptory writ issue as prayed.
Conrey, P.J., and York, J., concurred.
A petition by respondents to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 8, 1928.