Nomm v. Nomm

ST. CLAIR, J. pro tem.

*

This is an appeal from an order pendente lite in a divorce action.

The order in question, issued after a hearing on an order to

[664]

show cause, read, in part: “Wherefore, It Is Hereby Ordered, Adjudged and Decreed that the defendant be and he is hereby restrained and enjoined from entering the dwelling house of the parties hereto at 232 Twenty Seventh Avenue, San Mateo, California from and after 5:00 0 ’clock p. m. of Friday, September 13,1957 and until the further order of this court. ’ ’

The action came to trial and an interlocutory decree was entered on March 4, 1958, awarding the house to plaintiff. No appeal has been taken from the interlocutory decree.

The questions presented by this appeal are now moot. An appeal from an injunction pendente lite does not affect the power of the court to hear and decide the ease on the merits, even though some of the same issues as were involved in the injunction pendente lite were disposed of by the later judgment. (D

oudell

v.

Shoo,

159 Cal. 448, 455 [114 P.

579]; Gray

v.

Bybee,

60 Cal.App.2d 564, 571 [141 P.2d 32].) The interlocutory decree in this case has awarded the home to plaintiff. An adjudication that the court should not have restrained defendant from entering it between September 13, 1957 and March 4, 1958, the date of the decree, could now have no real consequences. The order being prohibitory in form, but mandatory in its nature, its effect would have been stayed by the appeal. (See

Food & Grocery Bureau

v.

Garfield,

18 Cal.2d 174, 177 [114 P.2d 579];

Smith