Bevelle v. Bank of America National Trust & Savings Ass'n

McCOMB, J.

This is an appeal by plaintiff from an order dismisssing an action for separate maintenance after the death of defendant without making an additional allowance for plaintiff’s attorney’s fees and costs.

Agreed Facts

Plaintiff filed a suit against her husband for separate maintenance. At a preliminary hearing on an order to show cause why attorney’s fees and costs for the prosecution of the action should not be granted to plaintiff it was stipulated by the attorneys for the respective parties that the husband should be ordered to make a payment on account of such fees and costs

[334]

and that the balance should be fixed by the trial court at the time of trial. Thereupon an order was made allowing plaintiff (a) $500 on account of attorney’s fees and (b) $100 on account of costs. Subsequently trial of the case was commenced but before its conclusion defendant died, and upon motion of defendant’s attorney the action was dismissed without any further order for attorney’s fees or costs being made. Upon application of plaintiff the court made an order substituting the special administrator for the estate of the deceased in place of defendant.

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Agreed Question on Appeal

Was a stipulation at the hearing on the order to show cause that attorney’s fees and costs be set at the time of trial a contract and a continuing order that survived defendant’s death so that the dismissal of the action before the fixing of such fees and costs was

improper?

This question must be answered in the negative. The law is settled in California that the death of one of the parties to a suit for divorce or separate maintenance abates the action and terminates the jurisdiction of the court to proceed with the action or to make any further determination of property rights, alimony, costs or attorney’s fees.

(Kellett

v.

Marvel,

9 Cal.App.2d 629, 630 [51 P.2d 185], and cases cited therein;