Howell v. Superior Court

GRIFFIN, P. J.

Petitioner Maria Howell filed this petition for writ of prohibition to restrain further proceedings in a divorce action now pending in respondent court. The basis for the petition is the contention that the superior court has no jurisdiction to proceed because of a prior pending action between the same parties involving the same cause before the Superior Court of Los Angeles County.

Two actions are pending between petitioner and her husband: The first in time, a separate maintenance action, was filed by petitioner in Los Angeles on July 13, 1960. The husband (respondent herein) was served in that action in July 1960. Thereafter, the husband filed a divorce action in San Bernardino County on August 28, 1961. Petitioner (defendant in the San Bernardino action) was served in that action on September 1,1961. After that time, petitioner filed an amended complaint for separate maintenance in' the Los Angeles action on September 13,1961, and the husband was personally served with the amended complaint on September 14, 1961, and he filed an answer to the complaint on July 24,1962.

In the interim, on October 3,1961, a hearing was held in the Los Angeles Superior Court

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attorney’s fees, costs, alimony, pendente lite support and custody of the children. The court entered an order restraining the petitioner from disposing of the community property, awarding the wife the use of an automobile and ordering the husband to pay $25 per week for the support of the minor child of the parties and $15 per week for the support of petitioner. The husband was ordered to pay petitioner’s attorney $200 plus $30 costs, payable at the rate of $30 per month. The husband appeared at the hearing preceding the issuance of this order. Apparently, he was also represented by Attorney Thomas Eckhardt at said hearing. Thereafter, the husband caused the petitioner’s default to be

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entered in the San Bernardino divorce action and an interlocutory judgment of divorce was entered by the San Bernardino court on January 4, 1962. Later the petitioner made a motion, under Code of Civil Procedure, section 473, to set aside the interlocutory judgment and the judgment was set aside.