Carradine v. Carradine

WHITE, J.

On June 29, 1945, plaintiff filed an action in the Superior Court of Los Angeles County against her former husband, John R. Carradine, and the other above named defendants. In that action the relief prayed for was (1) to have it judicially declared that defendant John Carradine Productions, Inc., a corporation, was the

alter ego

of her divorced husband; (2) for judgment against defendant John R. Carradine and the corporation in the sum of $5,000; (3) for an accounting; (4) for attorney’s fees; and (5) for appointment of a receiver.

On the same day that plaintiff filed her complaint she also filed in the proceeding an affidavit wherein she averred in part that her action was one for the recovery of money on a cause arising upon express contract; that the defendant John R. Carradine was about to depart from the State of California with the intent to defraud his creditors, and particularly to defraud plaintiff herein. Upon the filing by plaintiff of an undertaking in the sum of $1,000, an order was issued for the arrest of defendant John R. Carradine (Code Civ. Proe., §§479, 480, 481).

On July 2, 1945, a motion was made on behalf of defendant John R. Carradine to vacate the order of arrest (Code Civ.

[777]

Proe., § 503). According to the clerk’s transcript now before us, the motion was “argued by counsel on the sufficiency of the affidavit of Ardanelle M. Carradine on file herein.” It was upon this affidavit that the order for the arrest of defendant John R. Carradine was issued. After hearing arguments by counsel for the respective parties, the court made an order granting the aforesaid motion, discharging defendant John R. Carradine, and exonerating his bond. From the order granting the motion to vacate the order of arrest plaintiff appealed.

When the record on appeal was lodged in this court, and following the filing of appellant’s opening brief, respondent moved to dismiss the appeal on the ground that the order from which the appeal was taken is not an appealable order within the purview of section 963 of the Code of Civil Procedure ‘ ‘ or any other provisions of the laws of the State of California”; and on the further ground “that the issues involved in said order of arrest and the subsequent order vacating said order of arrest have now long since become moot, your affiant being presently in the State of California with no intent to depart therefrom except and unless in furtherance and in compliance with professional” (theatrical) “engagements, ...”