Smith v. Smith

California Court of Appeal Jun 4, 1941 No. Civ. 12821Published

Before: McCOMB

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Holding. The court held that a clerk's minute entry is not an appealable order when it is merely a preliminary notation indicating that the court intends to authorize a subsequent written order or judgment.

Issues

Was the clerk's minute entry of August 2, 1940, an appealable order?

Disposition. dismissed

Quotations verified verbatim against the opinion

“The law is established in California that an appeal does not lie from a minute entry or other memorandum, the clear intent of which is that the court has merely authorized the issuance of a written order or judgment”

“The minute entries were merely preliminary entries authorizing subsequent written orders.”

“As the record now stands, the purported appeal is from a nonappealable minute entry and is therefore dismissed”

McCOMB, J.

From a purported order denying a motion to quash a purported order authorizing the issuance of a writ of execution upon an alimony judgment after more than five years from the rendition thereof, defendant appeals.

The record discloses the following minute entries, sometimes denominated minute orders, of the trial court:

“JULY 18, 1940 Department 35

Present: HON. THOMAS C. GOULD, Presiding Judge.

PEARL B. SMITH,

vs.

Plaintiff,

VNo. D 41130

DALTON L. SMITH,

Defendant..,

“Motion of plaintiff for issuance of execution comes on for hearing, Joseph Scheeter appearing as attorney for plaintiff and C. Fetterly appearing as

amicus curiae;

said motion is granted. ’ ’

[213]

“AUGUST 2, 1940 Department 35

Present: HON. THOMAS C. GOULD, Presiding Judge.

PEARL B. SMITH, h

Plaintiff,

vs.

No. D 41130

DALTON L. SMITH,

Defendant. .

“Motion of defendant to quash and recall execution comes on for hearing, Joseph Schecter appearing as attorney for plaintiff and E. S. Patterson for defendant; said motion is denied. ’ ’

Smith v. Smith

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PEARL B. SMITH,

DALTON L. SMITH,

DALTON L. SMITH,

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