Taliaferro v. Taliaferro

DOOLING, J.

This is an appeal from an order setting aside a final decree of divorce.

Appellant and respondent were married in 1927. On July 7, 1932, respondent secured an interlocutory decree of divorce from appellant in an action filed in the City and County of San Francisco (hereinafter called the San Francisco action). No final decree was entered in this action until December 20, 1954, when appellant without notice to respondent filed the necessary affidavit to secure the entry of a final decree of divorce upon the interlocutory decree of July 7, 1932, and a final decree of divorce was entered thereon

nunc pro tunc

as of July 8,1933. Thereafter respondent moved to set this final decree aside and the court granted her motion. It is from this order that the appeal is taken.

In the meantime on September 7, 1943, respondent had filed a second action for divorce against appellant in Contra Costa County (hereinafter called the Contra Costa action). Appellant and respondent just prior to the filing of this action entered into a property settlement agreement. An interlocutory decree was granted to respondent in this action and there

[231]

after a final decree of divorce was entered therein in January 1945.

While appellant presents several points for reversal of the order setting aside the final decree in the San Francisco action he is in no position to urge them in the face of the final decree of divorce in the Contra Costa action. When a final decree of divorce was entered in the Contra Costa action it became a binding adjudication of the rights of the parties. That judgment superseded the interlocutory decree of divorce in the San Francisco action under the settled rule that where the same cause of action has been twice litigated by the parties the later judgment is conclusive.

(Standard Oil Co.

v.

J. P. Mills Organization,

3 Cal.2d 128, 139 [43 P.2d

797]; Wood