Stoner v. Superior Court

THOMPSON, J.

The respondent demurred to petitioner’s application for a writ, of certiorari, on the ground that it fails to state a cause authorizing the issuance of the writ.

The petition alleges that Clarence Stoner brought suit in the Superior Court of Yolo County against his wife Gertrude

[761]

Stoner, under section 82 of the Civil Code, for annulment of his marriage, on the ground that at the time of said marriage he had a living wife by a former marriage, which was then in force; that Gertrude Stoner demurred to that complaint on the ground that it failed to state facts sufficient to constitute a cause of action; that, upon motion of the defendant in that action under section 137 of the Civil Code, supported by affidavits, over the objection of plaintiff, the court made an order allowing the defendant $75 per month for maintenance and support pendente lite and $3.00 counsel fees, together with $10 costs; and that the court was without jurisdiction to make said order for the reason that the second marriage was void

ab initio.

We are of the opinion the petition for a writ of certiorari fails to state a cause of action authorizing the issuance of the writ for the reason that the plaintiff in the annulment suit had a remedy by appeal from the order awarding maintenance pendente lite, counsel fees and costs. It is not alleged in the petition that the appeal from the order for maintenance, counsel fees and costs would not afford an adequate remedy, but it is immaterial, under section 1068 of the Code of Civil Procedure, whether the appeal afford an adequate remedy. If the right of appeal exists the writ of certiorari should not issue.

An appeal lies, in either a divorce suit or an action for separate maintenance or for annulment from an order granting or denying a party thereto alimony, counsel fees or costs. The order is a final judgment from which an appeal lies.

(Lincoln

v.

Superior Court,

22 Cal.2d 304, 309 [139 P.2d 13];