Hitch v. Superior Court

WILLIS, J., pro tem.

This is a proceeding in

mandamus

to compel the respondent, superior court to set a divorce case for trial. In September, 1932, one Lucy Bays filed an action for divorce on the ground of extreme cruelty. Defendant therein answered joining issues on the complaint, and as part thereof added his cross-complaint seeking divorce on the same ground. No answer has been filed to the cross-complaint and no allegation is made that default has been entered for failure to answer the same. In November

[408]

of 1932, under sections 2168 to 2172, inclusive, of the Political Code, respondent court committed Lucy Bays to the state hospital as an insane person. Some three months later she was released from the hospital on parole in custody of her husband, with whom she resumed marital relations. No discharge as provided in section 2189 of the Political Code has ever been issued and filed. In May of 1934 Lucy Bays commenced another action against her husband for separate maintenance, numbered 17816, to which he answered and filed his cross-complaint for divorce, therein alleging reconciliation and condonation subsequent to the filing of „the first action. Lucy Bays answered the cross-complaint, and in June, 1934, the case was tried in respondent court and an interlocutory decree was entered therein in August of that year in favor of defendant on his cross-cofnplaint and denying plaintiff any relief. In the meantime, on July 26, 1934, on application of petitioner herein, as a brother of Lucy Bays, representing that she was an insane person by reason of the previous insanity proceedings of 1932, respondent judge made an

ex parte

order appointing petitioner as guardian

ad litem

of Lucy Bays in the first action, numbered 16482. After the entry of the interlocutory decree petitioner, as such guardian

ad litem,

filed and made a motion to set aside the judgment in the second case, 17816, which motion was denied. Thereafter petitioner made application to respondent court to have the first case, 16482, set for trial, which application was likewise denied. Petitioner by this proceeding seeks a peremptory writ of mandate to compel respondent court to set ease numbered 16482 for trial, basing the right to thus bring it to trial on the provisions of section 594 of the Code of Civil Procedure.