Pessarra v. Pessarra

California Court of Appeal Jul 24, 1947 No. Civ. 13494Published

Before: Peters

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Holding. The court held that a minute order granting a motion to vacate divorce decrees was the final, appealable order because the minute entry did not expressly direct the preparation of a written order, rendering a subsequent formal order a nullity. Consequently, the appeal from the subsequent void order was dismissed as the time to appeal the original minute order had expired.

Issues

Whether a minute order granting a motion to vacate divorce decrees constitutes the final, appealable order under Rule 2(b)(2) when it contains no direction for a written order.
Whether a trial court has the power to modify a final minute order by subsequently entering a formal written order.
Whether the time to appeal runs from the date of the minute entry or the date of a subsequent formal order.

Disposition. dismissed

Quotations verified verbatim against the opinion

“The rule proceeds upon the theory that under the statutes and practice the normal method of evidencing and authenticating an order is by entry in the minutes.”

“It is immaterial that the court contemplates the filing of a formal order, and considers the oral pronouncement as preliminary and ineffective.”

“For purposes of appeal the order of February 24, 1947, finally disposed of the case; that the court had no power to change or modify that order in the manner attempted by the order of April 4, 1947”

PETERS, P. J.

This is a motion to dismiss the appeal of plaintiff from an order of the superior court vacating, on motion, interlocutory and final decrees of divorce on the ground that they had been secured by fraud.

The pertinent facts and dates are as follows;

The plaintiff secured an interlocutory and a final decree of divorce from defendant. Thereafter, defendant moved for an order vacating and setting aside these decrees.

February 24,1947

— after a hearing the court made a minute order “Motion to set aside Interlocutory and Final Decrees granted.” The minutes contained no direction that a written order should be prepared, signed and filed. This minute order was inadvertently entered in the minute book as of February 22, 1947, but by an order correcting the record dated May 9, 1947, the proper date was fixed for the entry of the order. Subsequently the defendant submitted a proposed form of writ

[966]

ten. order and plaintiff objected. A hearing was had on March 18, 1947, and the court directed counsel for both parties to prepare proposed orders. Defendant avers that at this hearing his counsel repeatedly called attention to the minute order of February 24th, pointed out that such order was final, and that findings ¡were improper. Both sides submitted proposed orders.

April 4, 1947

— the trial court signed the formal order proposed by defendant. This order contains findings, and not only purports to vacate the interlocutory and final decrees of divorce, but also purports to nullify a property settlement agreement made in contemplation of the divorce.

May 2,1947

— plaintiff filed a notice of appeal from the order of April 4, 1947. No appeal was taken from the order of February 24, 1947, and the time to appeal therefrom expired prior to May 2, 1947.

Appeals from orders must be taken within 60 days from their entry. (Rule 2(a).) Obviously, if the order of February 24, 1947, disposed of the motion, the time for appeal having elapsed, such order has become final. It is clear that, if the order of February 24,1947, finally disposed of the motion, the trial court had no power to modify or change its order on April 4, 1947, the purported formal order of that date is a nullity, and the appeal therefrom should be dismissed.

Pessarra v. Pessarra

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PETERS, P. J.

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