*1 149 sup- sufficiently the trial court conclusion The related. Cal.App.2d Savin, 37 (People v. by the evidence. ported 773].) P.2d ordering established ground is Likewise, no sufficient appeal lies No corpus. on habeas release petitioner’s denying a superior from an order of a defendant appeal such corpus. of habeas writ The at 1506 of the Penal Code. section limited order is (People be dismissed. must tempted appeal therefrom 620].) Cal.App.2d Schunke, denying of habeas Attempted from order writ coram nobis corpus denying writ of error dismissed. Order affirmed.
Barnard, J., Mussell, J., concurred. May 15332, 15319, 15428. First Dist., Div. Two. [Civ. 1953.] Respondent, JACOB HAI RACHEL SOLOMON, SOLOMON, Appellant. consolidated
[Three cases.] *2 Appellant. for Henry Clausen Richard Burns C. G. . Douglas Respondent. for & Charles N. Mueller McLeod and presented con- NOURSE, P. J. are in a Three from an lite of the solidated record. order One awarding plaintiff ali- Superior San Francisco Court $250 $2,000 fees, costs. Another is mony, from Mateo a similar of the San awarding alimony. When the plaintiff $75 Court month appealed from this order the Mateo second pay ordered her counsel fees as and $250 appeals. both appealed costs to resist The defendant appeal presented that order and this is the third Plain- here. beginning proceedings tiff’s cause action at the of these was named him an action for maintenance. *3 During the course of proceedings changed, these the cause was appear. as will hereinafter litigation of the we will sketch picture overall give an
To
appellant’s brief, some of
are
in
as stated
the facts
However,
not.
there
are
is no issue
and some
corroborated
of
it
any
in
one
the
and
is not neces-
involved
of fact
any of
weigh
the evidence.
sary
us to
formerly lived in China where the defendant
parties
The
property of
acquired some
her own and raised
chil-
six
wife
plaintiff
nothing.
husband
little or
The
The
had
dren.
possession
then
into
of considerable funds
came
defendant
parties
The
estate.
all moved from
her mother’s
China
parents
where the
made their
in
Mateo
state
home
wife,
brought
with the
County and the
funds
from China
her
years
estate in
name. Four
some real
own
before
acquired
plaintiff
was commenced the
left his
home
wife and
this action
in
his residence
San Francisco.
made
hearing in the
court for
the
San Francisco
the
On
sought
proof
to make
of
the
these facts:
prove the husband’s
support
She endeavored to
desertion in
had no
that he
cause of action
of her contention
the wife’s
property
out of
maintenance
because of
Civil Code. She
prove
the
also
section
endeavored to
parties,
property-
the
all the
financial condition
both
standing in
separate property.
her name
her
was
She was
right in every
denied that
The court then
instance.
stated
go
that it did not have the time nor the inclination to
into
the
rights,
the
it would “assume
that counsel fees would
petitioner”;
have
be awarded the
parties
that,
agree,
if
could
“then
court
the
not
the
will make
arbitrary
requested by plaintiff.
order” as
Respondent
seeks to defend the order
the statement that
in
possession
counsel had
deposition,
affidavit and a
neither of which
in evidence,
court,
were offered
read to the
making
or considered
early
in
the order.
case of
Pardy Montgomery,
530],
authority
469], which involved an order for alimony and fees, support court said that an award “there prima showing must be a things: facie of three The existence marriage, wife, the needs of the ability and the pay.” husband to prove Because the failure two last mentioned factors court held that the award of counsel support fees was an abuse of discretion. The rule of that case controlling here since the defendant was denied right to show either the ability needs or the pay. of the defendant to
We the order San Francisco court was conclude that any support without evidence to an abuse of discretion—made persistent denial of upon it and defendant’s any offer in opposition. motion or to evidence None contest the case of of the essential factors this kind was shown and contrary principles to the basic the order announced Sweeley, Sweeley approved supra. *4 in No. 15332 is with reversed directions application Francisco court to dismiss the since San
to jurisdiction proceedings. it has no further to entertain the Appeal
The Second County After the cause was transferred to San Mateo a judge superior therein, the plaintiff, court on motion of alimony pendente him a month lite. awarded complaint filed Octo- on an amended The motion was based alleged one original complaint this 1951. Unlike ber acquired by $500,000, was valued property, all the at that exclusively. of belonged him Because this plaintiff to 137 of the 176 and interpretation amendment the of sections solely relates longer The former necessary. Civil Code is no seeking by the to applications husband for maintenance If she has no charge the wife. separate property of complaint) the property (as alleged amended separate in the 137. then states application heard under section It be quiet plead equity in purporting simple facts a title case delivery possession plaintiff to this of property, declaratory relief. A demurrer was day support sustained on the order for was made. same allegation plaintiff order was This latter based on the that income, hearing without was but on the of motion the that proof defendant plaintiff tendered that had deserted the approximately years prior defendant four to the commence- action; ment of property that all the held in the name in possession prop- was her separate erty; January 6, plaintiff that on 1947, the herein executed III will, paragraph of which reads as “I hereby follows: declare that all personal real and property, both in State of standing California elsewhere, of in the record name my of wife, beloved Solomon, together Rachel with the furni- furnishings ture and Carlos, is the separate property my of said beloved wife.” It is conceded property that all the litigation acquired by long the wife before the of date this will. At the time of the second only evidence of ownership showed that the San Carlos property separate was the property of the wife. It would purpose serve no detail covering any evidence of these Respondent statements. any does not controvert one of them. change of venue, After the October alleged he an amended which he filed has monthly with property $3,000, worth a income of is in the hands defendant. The not for any “grant certain amount maintenance but that the maintenance” and asks decree further deter- in the accounting. mination and an n complaint seems predicated This on idea there be a independent “decree maintenance” can any support, need for in the separation manner a decree for
154 However, limited divorce is and such a from bed board. O’Connor, 91 (O’Connor Cal.App. in California v. unknown 28 ; Court, 149 Monroe v. 2d P.2d [204 916] 473]; 431 Cal.L.Rev. and 153), P.2d 35 Cal.2d [170 although main there some resemblance between separation board, and from bed and no cases have tenance indicating found that an action for maintenance been any support permitted need in California. without of However, the least the fact action at in that m might be and demurrer respect demurrable that a necessarily complaint was not prevent sustained does the alimony. temporary a granting of On December 27 minute the order at the same sustained demurrer to the amended time granted complaint alimony and a month after hearing 212 McClurg, a on December 14th. 15 McClurg Cal. upholds granting lite 27], the of orders notwithstanding sustaining complaint, to the so demurrer long can be amended. the hearing ability
At the the evidence related to need and pay, questions ownership but the as to of the real mainly objection and of desertion An was were eliminated. question sustained to the whether the had the wife inherited money bought with which the property she and the husband prevented from going leaving into the reason for his his home. superior was no in the court there mention
At the brought good plaintiff’s action was question whether of the allegation he owned the notwithstanding his all faith This pendency demurrer. property and appeal us rule it. now on and asks on appellant raises argument was made close of the theAt parties supplemental point file briefs on this permitting appellant support cited briefs filed. The and such were Heller, Cal.App.2d argument Heller v. Cal.App.2d 464, 44], Bancroft, P.2d and Bancroft power of which relate to the 465], both 471 [50 Appellant bases such determination. trial court to make chronology changes plaintiff’s argument on her first, action; for main an action pleadings causes ownership complaint alleging sole ; tenance then amended equitable a asking relief; then second property omitting all for maintenance amended straight equitable property. relief as to the pleading cause review, pleadings these the end that asks us to Appellant maintenance, application for original hold that the we should attorneys’ fees and renewal of that costs presented in bad faith and before the San Mateo court were upon purpose procuring in fraud the court for suit money respondent’s partition to finance action for a of real personal Ordinarily property. appellate only judgment reviews the case as of the time below *6 (4 insofar as matters been before the lower court have Cal.Jur. 403, 544). “Pleadings 2d ruling complained filed after the § 134.) disregarded appeal.” (5 will be likewise on C.J.S. exceptions (4 528, §641; McKinney’s The few 2 Cal.Jur.2d Digest 645, 972) have little resemblance to the case before §
us. In
Johnson,
Sewell v.
363
710];
P.
v. Rilcoff,
[281
(Hibernia DeRyana, & Loan Sav. Soc. Cal. 532 [292 original complaint longer 632]) and that should no However, exceptions be considered. this rule is not without (21 215, 147) Cal.Jur. and where abandonment the action § temporary alimony, back does not relate as amendment of effect, should not have that either. It would appellant’s right sufficiently protected seem that could be temporary alimony a motion in the court below to terminate the because abandonment of the action for maintenance proceedings. and bad faith in maintenance Our affirmance prejudice of the order appellant is made without to the set aside move to the order for maintenance for the reasons herein outlined.
Order affirmed. Appeal
The Third on court, plaintiff’s same counsel for resisting previous costs and fees in two appeals, him $2,000 attorneys’ awarded $250 costs and fees February charged by 1952. The is thus several orders with attorneys’ fees, $750 for costs alimony. and an indefinite amount Plaintiff’s counsel filed pages covering a brief of supple all three and a *7 $4,000 performed mental brief. The sum of for the work excessive. the
And now that the first award has been annulled sum $2,000 Before this award was made likewise excessive. County 27, 1951, and on December Mateo court sus- San complaint filed tained defendant’s to the amended demurrer February 13, 1952, on 1951. When this order of 29, October 4, March complaint was made no amended was on On file. made, plaintiff 1952, following and all the orders theretofore complaint simple a action filed a second amended which is for an equity quiet personal property, in real and to title to possession of accounting profits thereof while plaintiff defendant and for a distribution to of his share of' property may portion such of that be determined community. complaint omits be This amended its costs, separate maintenance, and all reference to divorce repeat allegations some main- but does tenance, grounds prays for a divorce and for counsel states tees. litigation presented picture now that a plaintiff
The suing quiet personal property enjoys title to real and who is pay fees, costs, counsel maintenance as incident orders to and permissible. are not to a cause of action which awards such may 29, chronology repeated: events be On October by Francisco court after award was made the San in Appeal 15332, plaintiff No. filed an amended alleging he valued at that was sole owner of nothing. 27, 1951, and that his wife On December owned complaint. Mateo a court sustained demurrer pendente Thereafter the award of a month maintenance Following lite was award,' made. from that and plaintiff on March filed his second amended alleging again that he was the owner of all sole the real and personal property asking quieted his title be that omitting prayer for maintenance. procedural
Reference is made to these matters to illustrate appellant’s final they contention pre- show that all the liminary actions respondent leading to awards of main- tenance, counsel fees and costs were made in bad faith for the purpose obtaining money sole appellant to enable respondent prosecute relating action to the title to property. But as we have said, this is a matter for the trial upon court to determine hearing. full The order be must reversed with directions to rehear the application relating on the basis of all the circumstances good faith of and of his to an award of appeal. fees and costs of
Order reversed.
DOOLING, J.I
concur in
reversing
the order
the order
made
the San
Francisco
on
ground
Court
showing
necessity
that no
ability
pay
was made
respondent
appellant
permitted
was not
to introduce
questions.
on
evidence
those
I am satisfied that on an
application
maintenance, counsel fees and costs
inquire
the court should
not
into the
of whether or
not
(Civ.
the husband deserted his wife
Code, 176), since
§
goes
merits
the action and the merits are not
in issue
for an
allowance
lite
*8
(Locke
Paddon,
Paddon v. Locke
I
in the order
concur
impecunious
An
hus
for
maintenance.
completely
support by his wife is
correlative
right to
band’s
support by her
impecunious wife to
husband
of an
with that
§137)
are his
lite orders
(Civ. Code,
(Civ. Code, §§137.2, 137.3).
and costs
support,
for
counsel fees
allowing
order
I concur
reversal
counsel
ground
opposing
appeals
for
the two
the sole
fees and costs
We
awarded was excessive.
have affirmed
that the amount
appeal.
attacked in the second
The reasonable
respondent should
and costs of
be allowed
counsel fees
successfully
opposing an
counsel has satisfied
affirmed.
The trial
can now
us should be
find
actually
by
rendered
services
value
actually
costs
opposing the
incurred. The
should be
amounts so found
allowed
the trial court as
(Kohn Kohn,
Cal.App.2d
counsel fees
costs.
[
A 26, 1953, denied June respondent’s Supreme petition for a Court was July 22,1953. denied