101 Cal. 115 | Cal. | 1894
The decision rendered is, in effect, a final judgment, from which an appeal properly lies. (Sharon v. Sharon, 67 Cal. 196; Code Civ. Proc., sec. 577; California etc. R. R. Co. v. Southern Pacific R. R. Co., 67 Cal. 63.)
Charles G. Nagle, and W. Henry Jones, for Respondent.
An order allowing alimony is an order after judgment, which is itself subject of appeal. (Sharon v. Sharon, 79 Cal. 702.) In case of an appeal from any decision made after judgment, a bill of exceptions is the proper, and the only proper, mode of authentication. (Code Civ. Proc., sec. 651; Somers v. Somers, 81 Cal. 608.)
This is an action by a wife for a divorce on the ground of desertion. Defendant being absent from the state was not personally served with summons, but, upon substituted service and his default, judgment was given in September, 1890, dissolving the
More than a year after the entering of this judgment— in December, 1891—the defendant having come within the state, the plaintiff filed a petition in the nature of a supplemental complaint, setting forth that the defendant was possessed of a large amount of property in Idaho, the proceeds and increase of community property which he took with him at the time he deserted her, and praying for an order upon him to show cause why he should not be required to pay her permanent alimony, counsel fees, etc. Such order having been made and served upon the defendant, he appeared and demurred to the petition, and, his demurrer being overruled, afterward filed an answer.
Pending the hearing other orders were made by the court—one requiring the defendant to give security for the payment of any judgment that might be recovered against him, and another directing him to appear before a notary and give his deposition.
For disobedience of the latter order his answer was stricken out by one order, and by another his attorneys were debarred from cross-examining the witnesses produced by the plaintiff at the hearing of her petition.
After an ex parte hearing the court made an order or decree requiring the defendant to pay to the plaintiff one hundred dollars per month permanent alimony.
From this order or decree, and also from the orders striking out his answer and debarring his attorneys from cross-examining the plaintiff's witnesses, the defendant has appealed, and the plaintiff now moves to dismiss the several appeals because there is no bill of exceptions embodying the papers and evidence upon which the superior court based its action.
When an appeal has been regularly taken from an order of the superior court, the lack of a bill of exceptions embodying and authenticating its proceedings is not a ground for dismissing the appeal, but rather for a
The questions presented are not free from difficulty, and involve the whole merits of the appeal. We are, therefore, not inclined to consider them on this motion in advance of other cases entitled to precedence.
Motion denied.
McFarland, J., De Haven, J., Paterson, J., and Harrison, J., concurred.