84 Cal. 424 | Cal. | 1890
Upon the going down of the remittitur upon the appeal from the original judgment granting a divorce in this cause, and from the order granting alimony and counsel fees (75 Cal. 1), plaintiff moved the court below for judgment against the present defendant, executor of
The court overruled all the objections made by defendant, and ordered judgment against him and in favor of plaintiff for $6,614 as alimony, and $825.25 as costs, from which judgment this appeal is taken.
1. The defendant made the point in the court below, and insists upon it here, that plaintiff was not entitled to such judgment, for that she had not presented or exhibited any claim for alimony or costs to the executor of William Sharon, or to the judge of the probate court.
While it is a general rule of statute law in this state that claims against the estates of deceased persons, upon money demands, whether in suit or in judgment, must be presented to the executor or administrator for approval or rejection, before any action can be maintained thereon, the question of whether or not it would apply to this peculiar case is not free from doubt; and it is one entirely unnecessary to be determined on this appeal. There is another point in the case, now coming up for the first time squarely on the record, which determines the rights of the parties, not only upon this appeal, but which must govern the courts of this state in all future proceedings • which may be attempted in the action out of which the judgment or order here appealed from has come. To that point we address ourselves, as conclusive of the case.
2. From the record in this case, and upon this appeal, it appears that the original judgment, which was the basis of the judgment now appealed from, was based upon certain findings, which are given in the transcript;
A marriage being found, and it being further found that defendant had violated the obligations imposed upon him by the marriage relation, judgment for divorce, alimony, and costs followed. From that judgment two appeals were taken by the defendant; one direct, on the judgment roll alone; the other from an order refusing to vacate the decision and grant a new trial. A reversal of the court below on either of these appeals was fatal to that judgment. Until both were disposed of, the case was still pending. When Sharon died, and when this application for final judgment for alimony and costs was made, only one of those appeals had been disposed of, so that the case was then still pending.
Under these circumstances, and on the application for the judgment now appealed from, this defendant proved that, nearly a month before the commencement of this action, the original defendant, William Sharon, com- , menced an action against this plaintiff, by the name of ' Sarah Althea Hill, for the purpose of obtaining a decree canceling the identical contract which by the court in this case was found to be the only contract or agreement of marriage ever made by or subsisting between the par
The record shows that the circuit court of the United States (the court in which such action was brought) acquired jurisdiction of the persons and subject-matter before the commencement of this action. Consequently, no matter when its judgment was rendered, whether before or after the date of the judgment of any other tribunal subsequently acquiring jurisdiction over the same persons and subject-matter, the final judgment in that case became binding and conclusive as to that subject-matter upon all persons, and upon all other courts and tribunals whatsoever. (Taylor v. Taintor, 16 Wall. 370; Shoemaker v. French, Chase’s Dec. 267; Gaylord v.
The judgment of the court below for alimony and costs was essentially based upon this identical contract or instrument; for the court expressly finds that it was the only contract or agreement of marriage between the parties. There could be no marriage without a contract or agreement of the parties. Without marriage there could be no divorce, and without this judgment for divorce, there would have been no judgment for alimony or costs. This judgment in the circuit court was and is the only final judgment on the question of the validity of the contract, upon which this alleged marriage depends. Upon the application to have the judgment for alimony and costs entered up against this executor, he interposed this judgment of the circuit court, showing an adjudication, the legal effect of which was to determine that under this contract there had been no marriage, and consequently that there could be no divorce, and forever enjoining the plaintiff from asserting any marital or property rights under it, and asked that the court compel her, in this action, to obey said injunction. It was error in the court to deny this request.
In Engels v. Imbeck, 4 Cal. 32, this question was fully considered and passed upon by this court. The action was ejectment, and the defendant moved for a stay of proceedings, on the ground that he had commenced a suit in the fourth district court (a court of co-ordinate jurisdiction), and obtained an injunction against the plaintiffs, restraining them from disturbing his possession of the land in question. This court, in discussing the question, says: —
*432 “If is said, however, that the injunction, operates upon the party, and not upon the court, and that therefore the court of the seventh district was right not to regard it, and the defendant’s remedy is by attachment for contempt in the fourth district. We prefer to lay down a different rule. The remedy suggested, for aught that we can see, may be fraught with difficulty and involve the parties in needless expense. When a party obtains an injunction to restrain the prosecution of a suit, he acts upon the presumption that the process of the court will be respected, and it may reasonably be supposed that he declines to make the necessary preparation for the trial of his case. This ought certainly to be considered a good reason even for granting a continuance. But we think that the propriety of the observance of the injunction, by the court to whose notice it is brought, may be properly placed upon higher grounds. The comity which one court owes to another of concurrent jurisdiction should always prevent the one from lending itself as an instrument in permitting a contempt of the process of the other. The one should regard the party attempting to proceed in defiance of the authority of the other as laboring under the same disability to ask for the action of the court as if he was an alien enemy, or under the ban of a decree of outlawry at common law. Such being the opinion we entertain upon this point, we cannot permit the judgment to stand.” (Page 33.)
To claim alimony and costs under a judgment based upon that alleged marriage contract was to make a claim under and by virtup of that writing in violation of the injunction.
Several other points are made by the appellant on the record, but we do not deem it necessary to consider them.
Attention is also called to the fact that, since the entry of the judgment appealed from, the appeal from the order refusing to vacate the original decision, and denying the motion for new trial, has been reversed by this court.
The judgment appealed from, being the judgment entered in this cause June 23,1888, on the motion of plaintiff made May 5, 1888, is reversed, and the court below is directed to enter an order denying said motion.
Works, J., and Paterson, J., concurred.