Solomon v. Solomon

THE COURT.

This is an application for a writ of supersedeas.

In an action in the Superior Court of San Mateo County wherein the respondent, husband, sued his wife (petitioner herein), for separate maintenance, an order was made on January 2, 1952, after notice and hearing, requiring her to pay him $75 a month “as temporary alimony until the further order of this court, commencing on the 28th day of December, 1951.”

On January 10 petitioner appealed and filed an undertaking for $1,350 to stay the execution thereof.

On February 25, over a month before the record was cer

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tified or filed herein, petitioner filed in the Supreme Court an application for supersedeas which was transferred to this court on March 4, whereupon this court issued an alternative writ, returnable on April 14 which temporarily stayed all proceedings. The matter was then argued and submitted.

The clerk’s transcript shows that on February 8 a minute order was made in the superior court reading as follows: “Order to show cause re fees & costs. . . . Both sides having filed a notice of appeal, it is hereby ordered that defendant pay $250.00 on account of costs and $2000.00 attorney fees to be split equally on account of each appeal.”

While that order indicates that

both sides

had appealed, it apparently was a slip of the pen; it undoubtedly meant that of the $2,000 so allowed, $1,000 was allocated to this appeal (No. 15319) and $1,000 allocated to appeal numbered 15332, which had been taken by petitioner from an order made on October 24, 1951, by the Superior Court at San Francisco (Judge Morris) before the cause had been transferred to San Mateo County on appellant’s motion for change of venue .

The clerk’s transcript in 15319 certified by him on March 25th and filed herein on the 31st, contains a copy of his register of actions which fails to show

any appeal from the order of February 8.