Walker v. Walker

SCOTT (Robert H.), J. pro tem.

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This appeal relates to one phase of a controversy between Luke Walker and Mildred Walker, husband and wife.

The husband filed an action for divorce in Ventura County, case number D-46225, in November, 1956.

The wife in October, 1957, filed an action against the husband and others in Santa Barbara County seeking to quiet title to certain property and obtain other relief. A notice of lis pendens pursuant to Code of Civil Procedure, section 409, covering the subject property was recorded in that county. Pursuant to stipulation this case was ordered transferred to Ventura County. It was given case Number 45428 and by the court in the latter county, in March, 1958, it was ordered consolidated for trial with case Number D-46225. The cases have not been tried and it is indicated that the quiet title action is not at issue.

In August, 1958, the husband filed a petition in the divorce case (D-46225) asking for dissolution of a temporary restraining order and permission to sell real property located in Santa Barbara County. The petition and exhibits attached to it did not contain a description of the property, and did not mention the lis pendens or ask any order concerning it. A purchaser for the property was believed to be available at that time.

After a hearing the court made an order in the divorce case which granted the petition and gave a partial description of the real property but made no mention of the lis pendens. There is nothing before us to indicate that evidence or argument was heard or considered by the court bearing upon the latter subject. A few days later and without further notice or hearing an amended order was made and filed in the divorce case which contained a complete description of the real property and then stated that to the extent that the property described is affected by the lis pendens notice recorded in Santa

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Barbara County “said Lis Pendens Notice is hereby quashed and of no effect.”

The wife appeals from the amended order and also from the original order made by the court on the same matter.

Emphatic objection is made by her to the amended order respecting the lis pendens because this recorded notice was incidental to the quiet title case (45428) while the petition, hearing and order in controversy were in the divorce case (D-46225) only. Because the amended order was the only document in which the property was described we shall consider that for all purposes it has superseded the original order.