Crowley v. Superior Court

STURTEVANT, J.

This is an application for a writ of prohibition. In answer to the pleading filed by the petitioner the respondent has filed a general demurrer. Among other things, the petitioner recites that Mrs. Crowley was awarded a decree of divorce from the petitioner. The decree also awarded to her the custody of the two minor children and $100 per month for their support. Later that sum was reduced to $75 per month. The interlocutory decree was entered March 12, 1924, and the final decree was entered June 8, 1925. It is not alleged that an appeal was taken from said judgment. On April 27, 1936, upon request of the wife, the trial court made an order finding that the husband was in arrears $2,332, and imposed a lien in said sum upon certain of the properties owned by the husband. From said order no appeal was taken, but thereafter the husband made a motion to set aside said order. That motion was denied and the husband perfected an appeal from said order, filed a bond,' and a bill of exceptions is ready for signature. On May 1, 1936, the trial court made an order fixing the amount of the delinquent payments in the sum of $2,332 and ordered, that execution issue in said sum. From that order the husband appealed, filed a bond, and a bill of exceptions is ready to be engrossed. On July 24, 1936, the wife filed an .affidavit in the form of a questionnaire asking for an order to show cause why the husband should not be punished for contempt in failing to pay $1975, the balance of the instalments alleged to be due on that date. On the same date an order to show cause was issued returnable August 11, 1936. A hearing has been had but a continuance was taken until September 4, 1936, and the trial court has announced that on said date it will punish the husband as for contempt. To restrain the order last mentioned this application is made.

The gist of the contention made by the petitioner is that the two appeals operate as a stay and that the trial

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court is acting in excess of its jurisdiction in proceeding while said appeals are still pending. The respondent contends, however, that the order imposing the lien was an appealable order, but no appeal was taken and it has become final. Respondent further contends that as said order was appealable, the order refusing to vacate 'that order was not appealable.