Carlin v. Carlin

MR. JUSTICE Pro Tem. BURROUGHS Delivered the Opinion of the Court.

This is an appeal from an interlocutory decree of divorce and also from an order made after said decree had been made and entered.

The amended complaint states a cause of action for a divorce upon the ground of extreme cruelty. The defendant by her answer denied the allegations of cruelty and by a cross-complaint alleged facts sufficient to justify a divorce upon the same ground, but the only relief asked by her was permanent support and maintenance. The plaintiff and cross-defendant answered, denying the acts of cruelty set forth in the cross-complaint. Upon such issues the cause was tried and an interlocutory decree of divorce was entered in favor of the plaintiff, and the relief asked for in the cross-complaint was denied. The cause is before this court upon the judgment-roll alone.

The findings of fact, conclusions of law and judgment were filed March 15, 1928. On July 20, 1928, there was filed in the action an order signed by the trial judge striking from the findings and judgment portions thereof relating to the disposition of certain of the property of the parties. This order was made subsequent to the filing by the defendant and cross-complainant of a notice of appeal from the judgment. It is claimed by the appellant that this order was void because of a lack of jurisdiction in the trial court to make the order. This identical question was before the Supreme Court in

Krasky

v.

Woolpert et al.,

134 Cal. 338 [66 Pac. 309, 310], In that case the trial court filed its findings of fact on February 9, 1900; judgment was entered thereon February 13, 1900; appellant then gave no

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tice that on February 23, 1900, he would make a motion for an order that the conclusions of law be made consistent with the findings of fact; before this motion came on for hearing and on February 21, 1900, the court of its own motion made an order directing that the findings be set aside and the judgment vacated, and thereupon filed new and different findings, and ordered judgment upon the new findings; and accordingly, on February 23d, when appellant’s motion came on to be heard, the court denied it. Under this state of facts the Supreme.Court says: “It is now argued by appellant that after the court had once filed its findings, and judgment had been entered thereon, it lost jurisdiction as to the findings, and had no power, of its own motion to set them aside. For the purposes of this case, we may concede such to be the law, and the result is, that the findings first filed, and herein quoted, are the only findings in the case. If the court had no power to set them aside, the order to the extent that it attempted to set them aside, is void.” In the instant case we are of the opinion that the order amending the findings and also striking certain paragraphs from the judgment is for the reasons stated in