Brown v. Superior Court

TYLER, P. J.

Petition for writ of prohibition. It appears from the record that one Zoe Lowe Brown, as plaintiff, commenced an action in March, 1932, against her husband, Herbert Cutler Brown, petitioner herein, upon a certain property settlement agreement which was entered into between the parties in the year 1919 while they were husband and wife. Plaintiff set up and alleged in her complaint five distinct and separate causes of action. Judgment went for defendant and against plaintiff on the first four counts, and in favor of plaintiff under her fifth cause of action. Defendant appealed from that portion of the judgment in favor of plaintiff under her fifth cause of action, and no appeal was taken by plaintiff from the judgment relating to the first four causes of action. The appeal was heard by the District Court of Appeal, Second Appellate District. Said court was of the opinion that the contract upon which plaintiff’s causes of action were based was void and illegal as being in contravention of good morals and public policy. The decision gave its mandate “The judgment is reversed,” without more.

(Brown

v.

Brown,

8 Cal. App, (2d) 364 [47 Pac. (2d) 352].) No rehearing was asked for and the judgment became final.

Upon the filing of the

remittitur

plaintiff moved the superior court to set the said cause for trial upon the issues joined under all of the said five causes of action, and the court granted said motion. Prior to the date fixed for hearing, petitioner herein moved the court for an order dismissing the said cause as to the first four counts on the ground that, as plaintiff had not appealed from such portion of the judgment, the issues raised thereunder had become

[695]

final and the court was without jurisdiction or authority to try the same or make any order relating, to an amendment of the causes of action which plaintiff had moved the court to permit. The court made its order granting plaintiff leave to amend her several causes of action and ordered the complaint as so amended to be filed. Thereupon petitioner herein filed a petition in the District Court of Appeal, Second Appellate District, in all respects identical with the present petition except for the fact that such petition purported to be for a writ of mandate, but in the prayer the petitioner prayed for an injunction “restraining” the respondent here “from retrying said action upon any of the issues joined therein”. This petition was denied, and no application for rehearing thereof or for transfer and hearing in the Supreme Court was ever made. (Minutes of March 4, 1936, Cal. App. Dec. Advance Sheets No. 3202.) The petition herein does not disclose the fact that this similar application had been made. Under the facts it is claimed by respondent that the plea of a prior judgment as