92 P. 740 | Cal. Ct. App. | 1907
June 15, 1906, plaintiff commenced an action for divorce. At that time there were two children of *611
the parties — a girl, Celia, of the age of thirteen years, and a boy, Allen, of the age of eleven years. When the complaint was filed a restraining order was issued, directed to the Phoenix Insurance Company of London. This company had issued a policy of insurance for $1,500, covering property of the plaintiff and defendant, which property had been destroyed by fire April 18, 1906. This cause was tried August 20, 1906, and after the plaintiff had introduced her testimony the court granted defendant's motion for a nonsuit. This order was entered upon the minutes on August 20, 1906, and on the same day entered on the register of actions in the office of the county clerk. The court stated at the time the motion for a nonsuit was granted that the restraining order, under which the money due on the insurance policy was being held, would not be released, as the court had previously agreed to make provision for the payment of plaintiff's counsel fee out of said money, and that it would, at a later date, entertain a motion to make provision for the support of plaintiff and her minor daughter. September 14, 1906, the attorneys for the respective parties hereto met in the chambers of the trial judge, and the attorney for the defendant requested the judge to sign a formal judgment of nonsuit, and to vacate the restraining order. The request was granted without objection from the attorney for the plaintiff and upon representation by Mr. Jacob Samuels, defendant's attorney, that Samuels would collect the money due on said insurance policy, and have the same in court September 28, 1906, which was the day set for the hearing of the motion to make provision for the maintenance of the plaintiff and the said minor daughter. Defendant was not present at the meeting on September 14, 1906, and it does not appear that he ever authorized his attorney to enter into any agreement whereby he should be bound to pay any money. Subsequently, and without the knowledge of his attorney, the defendant obtained a certified copy of the order releasing the insurance money, collected the same, and refused to make it subject to the order of the court. September 28, 1906, the court made an order, directing the defendant to pay forthwith to plaintiff the sum of $150 for the maintenance of herself and the said minor daughter, the sum of $75 for plaintiff's counsel fees, and a further sum of $150 per month commencing October 28, 1906, for the further maintenance and *612
support of said plaintiff and said minor daughter. Subsequently the court, upon motion, under section
The part of section
Under the terms of section 136 of the Civil Code the court could have denied the divorce and provided support for the wife and minor children of the defendant or any of them. When the motion for nonsuit was granted on August 20th, doubtless the judge had this section in mind, and supposed he was proceeding thereunder. Whatever may have been the effect of this action of the court, it was disregarded by all concerned, and in the formal judgment of nonsuit, which was made and entered September 14th, there is no mention of the subject of maintenance.
We think the court had no jurisdiction to make the order of April 22, 1907, amending the judgment. (See Egan v. Egan,
In the case of Dyerville Mfg. Co. v. Heller,
Egan v. Egan,
The facts in the case at bar above narrated do not disclose this to be a case in which a judgment has been taken against a party through mistake, inadvertence, surprise or excusable neglect. There is no element of mistake, inadvertence, surprise or excusable neglect in the case.
It follows that the order appealed from should be reversed, and it is so ordered.
Cooper, P. J., and Hall, J., concurred.