Martin v. Martin

ASHBURN, J.

Plaintiff appeals from order denying her motion to vacate order modifying a previous custody order concerning the child of the parties to this divorce action. The appeal is based upon the fact that the order was made by Otho G. Lord, a commissioner of the superior court, sitting as judge pro tempore, and the further fact that the parties did not stipulate to his so acting.

The record is sketchy and while it does show that neither appellant nor her attorney made any oral or written stipulation pursuant to rule 532 of California Rules of Court

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that Commissioner Lord should act as judge pro tempore, it also shows (through the original superior court file which we have before us) that he had been appointed so to do pursuant to subdivision 4 of section 259a, Code of Civil Procedure, which says that every court commissioner of a city or city and county having a population of 900,000 or more (Los Angeles) shall, “in addition to the powers and duties contained in Section 259 of this code, have power: . . . 4. To act as judge pro tempore when otherwise qualified so to act and when appointed for that purpose; provided, that while acting as such he shall receive no compensation therefor other than his compensation as commissioner.” The order assigning Commissioner Lord to hear the matter was made by Judge William E. Fox on December 1, 1961, and reads: “Transferred to Department ‘B’ for hearing before Hon. Otho G. Lord, who is appointed to sit as judge pro tempore by assignment.” It affirmatively appears that Commissioner Lord was acting pursuant to such appointment on December 1, and on December 6, the day his order was made.

Respondent challenges the appealability of the order refusing to vacate, relying upon the general rule thus stated in

Spellens

v.

Spellens,

49 Cal.2d 210, 228 [317 P.2d 613]: “Even where there is a right of appeal from a judgment or order, a party cannot ordinarily take an appeal from a subsequent order denying a motion to vacate the judgment or order complained of, under such circumstances that the motion merely calls upon the court to repeat or overrule the former

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