Ross v. Ross

SHINN, P. J.

This is an appeal by defendant husband from an order granting the motion of plaintiff wife for an order vacating an order vacating her final decree of divorce which had previously been granted upon motion of the husband. The appeal is not meritorious and the order must be affirmed.

Upon the hearing which resulted in the order from which the appeal is taken, the court had before it the following facts: March 27, 1938, the parties intermarried; August

23, 1955,

the wife was granted an interlocutory decree of divorce upon the ground of extreme cruelty; October 17,1956, a final decree was entered; June 13, 1959, plaintiff married one Edward Lane; October 2, 1959, on motion of the husband the final

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decree was vacated; October 7, 1959, the wife gave notice of a motion under section 473, Code of Civil Procedure, to vacate the order of October 2,1959, for lack of notice; after a hearing on November 30, 1959, a minute order was entered reading “The court now gives its decision in accordance with the memorandum opinion filed herein this date.” This memorandum read in part “Findings of Fact” and “Conclusions of Law” but it contained no ruling on the motion or direction for entry of an order by the clerk. August 1, 1960, the minute order of November 30 was corrected

nunc pro tunc

to read “Motion of plaintiff to vacate order vacating final judgment of divorce is granted.” This is the order from which the appeal was taken September 23, 1960.

It is urged by plaintiff that the appeal was taken too late; that it should have been from the minute order of November 30, and should be dismissed. The point is not well taken. The only effective order granting plaintiff’s motion was the one made August 1,1960.

The memorandum amounted only to a statement of what the court proposed to have included in formal findings and conclusions to be prepared by counsel and it was of no more significance as a decision of the issues than some of the observations made by the court during the trial with respect to the evidence. Findings and conclusions have no place in the decision of a motion.