Fox v. Fox

MUSSELL, J.

This is a divorce action which was tried before C. A. Paulsen, judge assigned. The trial was concluded on'July 23, 1953. Findings were waived by stipulation of the parties and on July 27, 1953, a “Memorandum of Decision” was signed and filed as follows:

“As heretofore indicated, a decree will be granted to plaintiff wife.

“The personal property will be awarded to plaintiff. As to the real property, the wife should have a home for the children during the period of their minority, to be protected by a homestead, but defendant should have an equity of $2,500 to be realized by him in the event of a prior sale.

“Plaintiff will be given the care, custody and control of the children, subject to the right of reasonable visitation as heretofore indicated, defendant to pay $125 a month for the support of the children; plaintiff to have any earnings from the property. Attorney’s fees in the sum of $300 and costs will be allowed plaintiff.

“Plaintiff will submit judgment accordingly.

[254]

“Dated: July 27, 1953.

“C. A. Paulsen

“Judos of the Superior Court.”

On August 4, 1953, an interlocutory judgment was signed and filed by Judge Robert B. Burch, who did not hear the case. In this connection it appears from the affidavit of the attorney for plaintiff, which is in the files of said action, that he prepared this interlocutory decree and instructed his secretary to have it presented to Judge Paulsen for his signature; that through inadvertence and mistake the decree was presented to Judge Burch, who then signed it. On November 16, 1953, an interlocutory decree containing the same provisions as that of August 4, 1953, was presented to and signed by Judge Paulsen, who heard the case. This decree was entered on November 19, 1953, and apparently no appeal has been taken therefrom.

The notice of appeal herein reads as follows:

“To the Clerk of the Above Entitled Court: