Dell v. Superior Court

California Court of Appeal Jul 7, 1921 No. Civ. No. 3656.Published

Before: Shaw

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Holding. The court held that a trial court lacks jurisdiction to vacate a valid interlocutory judgment of divorce on motion after the time limits prescribed by section 473 of the Code of Civil Procedure have expired. Furthermore, the court determined that prohibition is an appropriate remedy because an appeal would not provide an adequate remedy given the potential for the petitioner to be compelled to pay the opposing party's legal costs during the appeal process.

Issues

Does a trial court have jurisdiction to vacate a valid interlocutory judgment of divorce on motion after the time limits of section 473 of the Code of Civil Procedure have expired?
Is a writ of prohibition an appropriate remedy when an appeal would not provide an adequate remedy due to the risk of being compelled to pay the opposing party's litigation costs?

Disposition. Alternative writ of prohibition made permanent.

Quotations verified verbatim against the opinion

“the court is without jurisdiction by any proceeding in the case to vacate the judgment.”

“The trial court is without jurisdiction to entertain the motion or make the order therein applied for, and under the circumstances, conceding that petitioner might appeal therefrom, it would not afford him an adequate remedy”

SHAW, J.

Upon filing the petition herein an alternative writ of prohibition was issued, in response to which the respondent has made return, from which and the petition it appears that on June 9, 1919, Eva D. Dell obtained an interlocutory judgment for divorce against George L. Dell, petitioner herein, as to the validity of which judgment no question is made. Thereafter the parties effected a reconciliation and in December, 1919, resumed their marital relations which, except for temporary interruptions, continued to April 28, 1921, when they again separated and Eva D. Dell instituted another action for divorce against

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her husband, wherein she asked for an order requiring him, as defendant therein, to pay certain moneys as attorney’s fees, alimony, and costs. About the same time, by a motion made in the first action based upon the ground that subsequent to the rendition of the interlocutory judgment therein the parties had resumed their relations as husband and wife, she applied to the court asking it to annul and vacate the interlocutory judgment, which motion the court threatens to and will, unless restrained, grant.

As stated, the regularity and validity of the judgment is not questioned, and the application to so annul it was not made until nearly two years after its rendition. The law seems to be well settled that a court has no power to set aside or vacate on motion a judgment not void upon its face, unless the motion is made within the time fixed by section 473 of the Code of Civil Procedure.

(People

Davis,

143 Cal. 673, [77 Pac. 651];

People

Temple,

103 Cal. 447, [37 Pac. 414].) The judgment entered on June 9, 1919, constituted a valid interlocutory judgment declaring plaintiff entitled to a divorce. “As such it was subject to be vacated on appeal, or on motion for new trial, or by proceedings under section 473 of the Code of Civil Procedure. The time for all these proceedings having expired, and no such proceeding to vacate it having been instituted” until nearly two years after its rendition, the court is without jurisdiction by any proceeding in the case to vacate the judgment.

Dell v. Superior Court

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SHAW, J.

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